SHYAM TELELINK LTD. NOW SISTEMA SHYAM TELESERVICES LTD.versusUNION OF INDIA

                    [2010] 12 S.C.R. 927


     SHYAM TELELINK LTD. NOW SISTEMA SHYAM                      A
               TELESERVICES LTD.
                             V.
                      UNION OF INDIA
              (Civil Appeal No. 7236 of 2003)
                                                                B
                     OCTOBER 5, 2010

     [MARKANDEY KAT JU AND T.S. THAKUR, JJ.)

     Telecom Regulatory Authority of India, Act, 1997 - s.
14(f!}(i) rlw s. 14A(1) - Grant of licence to a company under   C
Telecom Act for providing basic telecom services - Delay in
commencing the commercial operations within the stipulated
time provided in the agreement due to certain technical
deficiencies - In the meantime, introduction of 'Migration
Package' - The company unconditionally accepting the            D
package and paying the entire amount towards the licence·
fee and liquidated damages in terms of the package - Further
demand of amount towards liquidated damage - The
company challenging the demand of entire amount towards
liquidated damages and demanding refund thereof - The           E
tribunal declined the challenge - On appeal, Held: The
company not entitled to question the terms of the Migration
Package after unconditionally accepting and acting upon the
same - The unconditional acceptance of the package would
estop the company from challenging the recovery of the dues     F
under the package - The company cannot be allowed to
approbate and reprobate the same instrument - Telecom Act,
1885 - Evidence - Estoppel.

    Maxim - Maxim 'qui approbat non reprobat' -
Applicability of.                                               G

    Doctrine -      Doctrine of benefits and burdens -
Applicability of.

                            927                                 H
    928      SUPREME COURT REPORTS            [2010] 12 S.C.R.


A        The appellant was granted a licence under the
    Telecom Act, 1885 on 4.3.1998 for providing basic
    telecom services. The licence agreement required the
    appellant to start the commercial operations within twelve
    months from the date of the agreement. The appellant,
B   when sought permission to commence the commercial
    operations, towards the end of the year, it was denied on
    the ground that certain technical deficiencies remained
    to be removed. In the meantime, the respondent-Union of
    India offered a Migration Package. The appellant gave an
C   unconditional acceptance to the Package. The
    respondent, in terms of the package, demanded 35% of
    the outstanding licence fee with interest, and also
    liquidated damages amounting to Rs. 7.30 crores. The
    appellant prayed for waiver of the damages and the same
D   on being turned down, paid the entire amount towards
    the liquidated damages. The appellant started the
    commercial operations on 5.6.2000. Thereafter, the
    respondent demanded a further amount of Rs. 70 lakhs
    as liquidated damages from the appellant for the delay in
    commissioning the service. Aggrieved by the demand of
E   the entire amount of Rs. 8 crores towards the liquidated
    damages, the appellant filed a petition before the Telecom
    Dispute Settlement and Appellate Tribunal and also
    demanded refund of the entire amount of Rs. 8 crores.
    The Tribunal dismissed the petition. Therefore, the
F   instant appeal was filed.

          Dismissing the appeal, the Court
       HELD: 1. The Tribunal was justified in holding that
G the commercial operations were started only on 5th June,
  2000 and that for the intervening period such operations
  could not be commenced on account of deficiencies that
  were attributed entirely to the defects in the system which
  the appellant had installed. It is not correct to say that the
  appellant was ready to commence commercial
H
      SHYAM TELELINK LTD. v. UNION OF INDIA             929


  operations in February 1999 i.e. within one year of the A
  date on which the agreement was signed between the
  parties, which is evident from the fact that it applied for
  the grant of permission to commence commercial
  operations from 3rd February, 1999 and this was
  sufficient to show its readiness to commence such B
  operations. It is not disputed that the actual operations
  started only on 5th June, 2000. The material placed
  before the Tribunal clearly established that during the
  intervening period, the appellant had been informed by
  the respondent that clearance for commencing c
  commercial operations could be considered only after
  certain requirements of the licence agreement were
  complied with. The material further established that the
  deficiencies pointed out by the Telecommunication
  Engineering Centre (TEC) could not be rectified by the 0
. manufacturer of the equipment purchased by the
  appellant forcing the latter to go for a new set of
  equipment from a new vendor in December 1999 which
  equipment was finally delivered and installed in April
  2000. It was only after the installation of the said
                                                                E
  equipment that fresh test certificates were issued by TEC
  on 1st June, 2000 leading to the start of the commercial
  operations on 5th June, 2000. The fact that the appellant
  was not ready to commence commercial operations in
  February 1999 is evident from its own letter dated 19th
  July, 1999 in which the appellant had clearly admitted that F
  the system was not yet ready for such operations and
  that the appellant was engaged only in monitoring and
  testing the credential of the new technology and the
  related software/hardware. It is also evident from the
  letter of the appellant dated 25th August, 1999 that the G
  appellant was not in a position to indicate any firm date
  for a formal launch of the service as the system was not
  yet in a position to do so. In the light of the above
  admission which is the best evidence against the
  appellant, it is not open to the appellant to say that it was H
    930     SUPREME COURT REPORTS             (2010] 12 S.C.R.


A ready to start commercial operations in February 1999.
  [Paras 7, 8 and 9] [936-C-F; 937-D-G; 938-B-D]

          2. The Tribunal was also justified in holding that the
    denial of permission to the appellant to commence the
    operation was neither arbitrary nor ma/a fide, especially
8
    when the conditions in the licence agreement, requiring
    the appellant to arrange and install suitable equipment to
    meet the prevailing technical specifications by TEC were
    not complied with nor were all performance tests required
C   for successful commissioning of the services carried out
    by the licensor before the services are commissioned for
    public use. The plea that the respondent has acted
    arbitrarily and in a discriminatory manner by overlooking
    similar deficiencies in the case of other service providers
    has also been correctly repelled by the Tribunal on the
D   ground that the nature of the deficiencies found in the
    case of the appellant have not been found similar to
    those found in other cases, where permission was
    granted. The appellant also failed to implead the other
    service providers nor was any material placed on record
E   to show that any discriminatory treatment was meted out
    to it. So long as the conditions of the agreement entitled
    the respondents to decline permission to commence
    commercial operations on account of failure on the part
    of the appellant to comply with the conditions stipulated
F   in the said agreement, which condition included a defect-
    free efficient system, the fact that some other service
    providers were given permission in the peculiar facts of
    their cases and deficiencies allegedly noticed in their
  system could not make out a case for the appellant to
G question the demand raised on the basis of a package
  which the appellant had accepted unconditionally and
  pursuant to which acceptance of a substantial part of the
  liquidated damages amounting to Rs.7.3 crores had been
  deposited by it without any demur. [Paras 9 and 1O] [938-
H D-H; 939-A-C]
     SHYAM TELELINK LTD. v. UNION OF INDIA          931


      3. The Tribunal has also rightly held that the A
  computation of the liquidated damages for non-
  commencing of the services as well as limiting the same
  to a total amount of Rs.8 crores was in conformity with
  the licence conditions executed between the parties.
· There is nothing to suggest that any error has crept in B
  the computation of liquidated damages nor was any such
  error pointed out before the Tribunal. [Para 11) [939-D-E]

      4. The appellant was not entitled to question the
 terms of the Migration Package after unconditionally
 accepting and acting upon the same. The payment of C
 liquidated damages was an essential condition of the
 Migration Package which was offered to the service
 providers. Unconditional acceptance of the package
 including the payment of outstanding licence fee with
 interest due thereon and liquidated damages was a D
 specific requirement of the Migration Package which was
 unequivocally accepted by the appellant. The
 unconditional acceptance of the terms of the package
 and the benefit which the appellant derived under the
 same will estop the appellant from challenging the E
 recovery of the dues under the package or the process
 of its determination. [Paras 12, 13 and 18] [939-F-G; 940-
 8; 943-C-D)

       5. Although the appellant had sought waiver of the F
 liquidated damages yet upon rejection of that request, it
 had made the payment of the amount demanded, which
 signified a clear acceptance on its part of the obligation
 to pay. The appellant, instead of taking recourse to
 appropriate proceedings and taking the adjudication
 process to its logical conclusion before exercising its G
 option, gave up the plea of waiver and deposited the
 amount which clearly indicates acceptance on its part of
 its liability to pay especially when it was only upon such
 payment that it could be permitted to avail of the
                                                          H
    932      SUPREME COURT REPORTS               [2010] 12 S.C.R.


A Migration Package. Allowing the appellant at this stage
  to question the demand raised under the Migration
  Package would amount to permitting the appellant to
  accept what was favourable to it and reject what was not.
  The appellant cannot approbate and reprobate. The
s maxim qui approbat non reprobat (one who approbates
  cannot reprobate) is akin to the doctrine of benefits and
  burdens which at its most basic level provides that a
  person taking advantage under an instrument which both
  grants a benefit and imposes a burden cannot take the
C former without complying with the latter. A person cannot
  approbate and reprobate or accept and reject the same
  instrument. [Para 13] [939-D-H; 941-A]

        Ambu Nair v. Kelu Nair AIR 1933 PC 167; City
    Montessori School v. State of Uttar Pradesh and Ors. (2009)
D   14 SCC 253; New Bihar Biri
    Leaves Co. v. State of Bihar 1981 (1) SCC 537; R. N.
    Goswain v. Yashpal Dhir AIR 1993 SC 352, relied on.

        American Jurisprudence, 2nd Edition, Volume 28,
E   pages 677-680 -     referred to.
                         Case Law Reference:
          AIR 1933 PC 167           Relied on.           Para 13
          (2009) 14 sec 253         Relied on.           Para 14
F
          1981 (1) sc.c 537         Relied on.           Para 15
                                             -
          AIR 1993 SC 352           Relied on.           Para 15
      CIVIL APPELLATE JURISDICTION : Civil Appeal No.
G 7236 of 2003.

         From the Judgment & Order dated 9.4.2003 of the
    Telecom Disputes Settlement and Appellate Tribunal in Petition
    No. 24 of 2001.
      SHYAM TELELINK LTD. v. UNION OF INDIA                   933


     Subramonium Prasad and Rohft Tandon for the Appellant.           A

    T.S. Doabia, Shweta Verma {for A.K. Sharma) for the
Respondent.

     The Judgment of the Court was delivered by
                                                                      B
     T.S. THAKUR, J. 1. This appeal under Section 18(1) of
the Telecom Regulatory Authority of lridia Act, 1997 is directed
against an order dated 9th April, 2003. passed by the Telecom
Dispute Settlement and Appellate Tribunal whereby Petition
No.24/2001 filed under Section 14(a)(i) read with Section             C
14A(1) of the Telecom Regulatory Authority .of India Act, 1997
has been dismissed. The factual matrix giving rise to the appeal
may be summarised at the outset.

     2. The appellant-Shyam Telelink Ltd. was granted a licence
                                                                      0
 under the Indian Telecom Act, 1885 on 4th Marc,h, 1998 for
providing basic telecom services in Rajasthan Circle. A licence
 agreement was executed between the parties that, inter alia,
required the appellant to start commercial operations within
twelve months from the date on which the agreement was
executed. The appellant's case before the Tribunal so also            E
before us is that, it was ready to commence commercial
operations in the last week of February 1999 and had sought
permission of the respondents io do so. Permission was,
however, denied on the ground that certain technical
deficiencies remained to be removed and certain conditions            F
for the grant of permission remained to be fulfilled. In the
meantime the Union of India appears to have offered a Migration
Package to all the Telecom Operators in July 1999. Under this
package which was offered to the appellant-Shyam Telelink Ltd.
on 22nd July, 1999 the fixed licence fee was to stand replaced        G
by a revenue-sharing arrangement w.e.f. 1st August, 1999
subject to the stipulation that atleast 35% of all outstanding dues
including interest payable as on 31st July, 1999 and liquidated
damages in full is paid by the appellant on or before 15th
August, 1999. Migration Package further provided that the             H
    934      SUPREME COURT REPORTS                [2010] 12 S.C.R.


A   company shall have to accept all the conditions stipulated in
    the package and that all proceedings instituted by the licensee
    or their associations against the Union of India shall have to
    be withdrawn.

       3. It is not in dispute that the appellant gave an
8
  unconditional acceptance to the Migration Package on 22nd
  July, 1999 nor is it disputed that on 10th At.:gust, 1999 the
  respondent advised the appellant that a sum of
  Rs.6,74,90,481/- was payable towards outstanding licence fee
  and interest due thereon apart from a sum of Rs.7.30 crores
C payable towards liquidated damages that were provisionally
  determined. The appellant-company was informed that in terms
  of the Migration Package at least 35% of the total licence fee
  along with interest amounting to Rs.6,74,90,481/- had to be
  paid by it before 16th August, 1999 and the balance dues
D covered by a Financial Bank Guarantee by the 30th
  November, 1999. The liquidated damages payable by the
  appellant-company were demanded in full and had to be paid
  on or before 16th August, 1999.

E        4. On receipt of the intimation demanding payment of the
    amounts mentioned above the appellant-company appears to
    have prayed for waiver of the liquidated damages on the
    ground that it could not commence commercial operations by
    the stipulated date on account of certain procedural delay. That
F   prayer was upon consideration turned down with the result that
    the appellant paid 35% of the outstanding licence fee and
    interest amounting to Rs.2.36 crores on 16th August, 1999. It
    also paid the full amount of Rs.7.30 crores towards liquidated
    damages as demanded by the Government.

G        5. Commercial operations in Rajasthan were finally
    started by the appellant-company on 5th June 2000. In March
    2001 a demand was raised by the respondent for payment of
    a further amount of Rs.70 lakhs as liquidated damages for the
    delay in the commissioning of the service. Aggrieved by the
H
      SHYAM TELELINK LTD. v. UNION OF INDIA                    935
                [T.S. THAKUR, J.]

demand of Rs.8 crores towards liquidated damages out of                A
which the appellant had already paid Rs.7.30 crores on 16th
August, 1999 the appellant approached the Tribunal for
redress. As mentioned earlier the appellant's case before the
Tribunal was that it was ready to commence commercial
operations in the last week of February 1999 and had sought            B
permission to do so from the respondent which permission was
in an arbitrary, illegal and discriminatory manner refl,l_~ed by the
respondent. Recovery of the liquidated damages was, therefore
bad, argued the appellant who demanded refund of the entire
amount of Rs.8 crores recovered towards liquidated damages             c
from it.

       6. The respondent contested the petition before the
 Tribunal, inter alia, on the ground that the petitioner-appellant
was not entitled to question any demand arising out of the
                                                                       0
 agreement executed between the parties after it had
 unconditionally accepted the Migration Package under which
 it agreed to deposit without demur the outstanding licence fee
 as also the liquidated damages payable under the licence
 agreement. The respondent also asserted that the appellant
 was not ready with the commissioning of the service as was            E
evident from the admissions made in several communications
sent by it to the respondent. It was further pointed out by the
 respondent that the computation t.· actual liquidated damages
could be undertaken only after the appellant had commenced
commercial operations. The actual charges after such                   F
computation were according to the respondent determined at
Rs.29.86 crores but the demand was restricted to Rs.8 crores
in terms of the explicit limitation prescribed under the licence.
An amount of Rs.7.3 crores having already been paid under
the Migration Package, a demand for payment of Rs.70 lakhs             G
only was raised by the respondent. It was also asserted by the
respondent that the appellant had not disputed calculation of
the amount of Rs.7.3 crores as liquidated damages for non-
commissioning of the service at the time of Migration Package
and paid the same with other dues. Having done so, the                 H
    936      SUPREME COURT REPORTS                  (2010] 12 S.C.R.


A   Migration Package which contained a specific stipulation that
    the acceptance of the package "will be deemed as a full and
    final settlement of all existing disputes whatsoever irrespective
    of whether they are related to the present package or not" could
    not be questioned by the petitioner-appellant. The respondent
B   also raised the question of limitation and assailed the
    maintainability of the petition on that ground. By its order dated
    9th April, 2003 impugned in this appeal the Tribunal dismissed
    the petition filed by the appellant aggrieved whereof the
    appellant has filed C.A. No.7236 of 2003 before this Court.
c        7. We have heard learned counsel for the parties and
    perused the record. A two-fold contention was urged in support
    of the appeal by counsel appearing for the appellant. Firstly, it
    was contended that the appellant was ready to commence
    commercial operations in February 1999 i.e. within one year
D   of the date on which the agreement was signed between the
    parties. The fact that the petitioner had applied for the grant of
    permission to commence commercial operations in Jaipur from
    3rd February, 1999 was according to the appellant sufficient
    to show its readiness to commence such operations. There is,
E   in our opinion, no force in that contention. It is not disputed that
    the actual operations started only on 5th June, 2000. The
    material placed before the Tribunal clearly established that
    during the intervening period the appellant had been informed
    by the respondent that clearance for commencing commercial
F   operations could be considered only after the following
    requirements of the licence agreement were complied with:

                 (a)   Payment of next instalment of licence fee
                       due on 3.3.1999;
G                {b)   Provision of Performance Bank Guarantee
                       (PBG) and enhanced Financial Bank
                       Guarantee (FBG) for requisite amount and
                       validity before commencement of
                       succeeding year on 3.3.1999;
H
      SHYAM TELELINK LTD. v. UNION OF !NOIA                    937
                [T.S. THAKUR, J.]

             (c)   Rectification of deficiencies pointed out by        A
                   TEC before the commencement of
                   commercial operations;

             (d)   Submission of plan in respect of providing
                   Direct Exchange Lines (DEL-s) and Village
                                                                       8
                   Public Telephones (VPT-s) as per committed
                   targets failing which Liquidated Damages
                   (LD-s) are payable; and

             (e)   Establishment of a separate bank account
                   (an escrow account as stipulated under              C
                   condition 18.6 of the Licence Agreement).

      8. Material further established that the deficiencies pointed
out by the TEC could not be rectified by M/s Qualcomm
manufacturer of the equipment purchased by the appellant               0
forcing the latter to go for a new set of equipment from a new
vendor in December 1999 which equipment was finally
delivered and installed in April 2000. It was only after the
installation of the said equipment that fresh test certificates were
issued by TEC on 1st June, 2000 leading          to the start of the
                                            I                          E
commercial operations on 5th June, 2000. The fact that the
appellant was not ready to commence commercial operations
in February 1999 is evident from its own letter dated 19th July,
1999 in which the appellant had clearly admitted that the system
was not yet ready for such operations and that the appellant
was engaged only in monitoring and testing the credential of
                                                                       F
the new technology and the related software/hardware. It is also
evident from the letter of the appellant dated 25th August, 1999
that the appellant was not in a position to indicate any firm date
for a formal launch of the service as the system was not yet in
a position to do so. The relevant part of the letter reads as under:   G

     "............ at this stage we are unable to indicate any date
     for formal commissioning of the commercial launch of the
     service since still there are bugs in the system provided
     by our supplier. In any case the testing has to continue for      H
. - 938       SUPREME COURT REPORTS               [2010] 12 S.C.R.


A         monitoring the behaviour of the equipment even after 75%
          loading of the system which is also being followed by DoT/
          MTNL, while acceptance testing of the systems. However,
          we hope to commercialize the services by middle of
          December 1999, as supplier is continuously working to
B         resolve the bugs in the software."

        9. In the light of the above admission which is the best
   evidence against the appellant, it is not open to the appellant
   to argue that it was ready to start commercial operations in
C February 1999. The Tribunal was, therefore, perfectly justified
   in holding that the commercial operations were started only on
  "5th June, 2000 and that for the intervening period such
   operations could not be commenced on account of deficiencies
   that were attributed entirely to the defects in the system which
   the appellant had installed. The Tribunal was also justified in
D our opinion in holding that the denial of permission to the
   appellant was neither arbitrary nor mala fide especially when
   the conditions in the licence agreement requiring the appellant
   to arrange and install suitable equipment to meet the prevailing
   technical specifications by Telecommunication Engineering
E Centre were no.t complied with nor were all performance tests
   required for successful commissioning of the services carried
   out by the Licensor before the services are commissioned for
   public use.

F       10. The argument that the respondent has acted arbitrarily
  and in a discriminatory manner by overlooking similar
  deficiencies in the case of other service providers has also
  been correctly repelled by the Tribunal on the ground that the
  nature of the deficiencies found in the case of the appellant
G have not been found similar to those found in other cases where
  permission was granted. As a matter of fact, the appellant was
  given an opportunity to implead the other service providers so
  that the allegation could be examined in detail but the appellant
  failed to do so nor was any material placed on record to show
H that any discriminatory treatment was meted out to it. At any
     SHYAM TELELINK LTD. v. UNION OF INDIA                  939
               [TS. THAKUR, J.]

rate so long as the conditions of the agreement entitled the        A
respondents to decline permission to commence commercial
operations on account of failure on the part of the appellant to
comply with the conditions stipulated in the said agreement,
which condition included a defect-free efficient system, the fact
that some other service providers were given permission in the      B
peculiar facts of their cases and deficiencies allegedly noticed
in their system could not make out a case for the appellant to
question the demand raised on the basis of a package which
the appellant had accepted unconditionally and pursuant to
which acceptance a substantial part of the liquidated damages       c
amounting to Rs.7.3 crores had been deposited by it without
any demur.

      11. The Tribunal has also held and in our view correctly so
that the computation of the liquidated damages for non-
commencing of the services as well as limiting the same to a        D
total amount of Rs.8 crores was in conformity with the licence
conditions executed between the parties. There is nothing
before us to suggest that any error has crept in the computation
of liquidated damages ndr was any such error pointed out
before the Tribunal. As a matter of fact, according to the          E
respondents the amount of damages works out to Rs.29.86
crores was limited to Rs.8 crores in explicit terms of the
limitation laid down in the licence agreement.

     12. The factual aspects apart we need to remember that         F
the payment of liquidated damages was an essential condition
of the Migration Package which was offered to the service
providers. Unconditional acceptance of the package including
the payment of outstanding licence fee with interest due thereon
and liquidated damages was a specific requirement of the            G
Migration Package which was unequivocally accepted by the
appellant in terms of the declaration made in the following
words:

          " .. With reference to the letter No.842-153/99-VAS
    (Vol.V) (Pt.) dated 22nd July, 1999 on the subject noted        H
    940       SUPREME COURT REPORTS                 [2010] 12 S.C.R.


A         above, I hereby covey unconditional acceptance on behalf
          of the Licensee ·with regard to the package proposed for
          migration of the existing licenses to NTP 1999 Regime on
          the terms and conditions in the letter under reference .... "

          13. The unconditional acceptance of the terms of the
B
    package and the benefit which the appellant derived under the
    same will estop the appellant from challenging the recovery of
    the dues under the package or the process of its determination.
    No dispute has been raised by thP appellant and rightly so in
C   regard to the payment of outstanding licence fee or the interest
    due thereon. The controversy is limited to the computation of
    liquidated damages of Rs.8 crores out of which Rs.7.3 crores
    was paid by the appellant in the beginning without any objection
    followed by a payment of Rs.70 lakhs made on 29th May, 2001.
    Although the appellant had sought waiver of the liquidated
D   damages yet upon rejection of that request it had made the
    payment of the amount demanded which signified a clear
    acceptance on its part of the obligation to pay. If the appellant
    proposed to continue with its challenge to demand, nothing
    prevented it from taking recourse to appropriate proceedings
E   and taking the adjudication process to its logical conclusion
    before exercising its option. Far from doing so, the appellant
    gave up the plea of waiver and deposited the amount which
    clearly indicates acceptance on its part of its liability to pay
    especially when it was only upon such payment that it could be
F   permitted to avail of the Migration Package. Allowing the
    appellant at this stage to question the demand raised under the
    Migration Package would amount to permitting the appellant
    to accept what was favourable to it and reject what was not.
    The appellant cannot approbate and reprobate. The maxim qui
G   approbat non reprobat (one who approbates cannot reprobate)
    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 level provides that a
    person taking advantage under an instrument which both grants
H   a benefit and imposes a burden cannot take the former without
     SHYAM TELELINK LTD. v. UNION OF INDIA                 941
               [T.S. THAKUR, J.]

complying with the latter. A person cannot approbate and           A
reprobate or accept and reject the same instrument In Ambu
Nair v. Kelu Nair AIR 1933 PC 167 the doctrine was explained
thus:

    "Having thus, almost in terms, offered to be redeemed
                                                                   8
    under the usufructuary mortgage in order to get payment
    of the other mortgage debt, the appellant, Their Lordships
    think, cannot now turn round and say that redemption under
    the usufructuary mortgage had been barred nearly
    seventeen years before he so obtained payment. It is a
    well-accepted principle that a party cannot both approbate     C
    and reprobate. He cannot, to use the words of Honyman,
    J. in Smith v. Baker (1878) LR 8 CP 350 at p. 357 'at the
    same time blow hot and cold. He cannot say at one time
    that the transaction is valid and thereby obtain some
    advantage to which he could only be entitled on the footing    D
    that it is valid, and at another time say it is void for the
    purpose of securing some further advantage'."

     14. View taken in the above decision has been reiterated
by this Court in City Montessori~chool v. State of Uttar           E
Pradesh and Ors. (2009) 14 sec 253. To the same effect is
the decision of this Court in New Bihar Biri Leaves Co. v. State
of Bihar 1981 (1) SCC 537 where this Court said :

    "It is a fundamental principle of general application that if
    a person of his own accord, accepts a contract on certain F
    terms and works out the contract, he cannot be allowed to
    adhere to and abide by some of the terms of the contract
    which proved advantageous to him and repudiate the other
    terms of the same contract l/',ihich might be
    disadvantageous to him. The maxim is qui approbat non G
    reprobat (one who approbates cannot reprobate). This
    principle, though originally borrowed from Scots Law, is
    now firmly embodied in English Common Law. According
    to it, a party to an instrument or transaction cannot take
    advantage of one part of a document or transaction and H
    942       SUPREME COURT REPORTS                   [2010] 12 S.C.R.


A         reject the rest. That is to say, no party can accept and
          reject the same instrument or transaction (Per Scrutton,
          L.J., Verschures Creameries Ltd. v. Hull & Netherlands
          Steamship Co.)"

         15. The decision of this Court in R.N. Goswain v. Yashpal
8
    Dhir AIR 1993 SC 352, brings in the doctrine of election in
    support of the very same conclusion in the following words :

          "10. Law does not permit a person to both approbate and
          reprobate. This principle is based on the doctrine of
C         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
D         for the purpose of securing some other advantage". [See:
          Verschures Creameries Ltd. v. Hull and Netherlands
          Steamship Co. Ltd. (1921) 2 KB 608, at p.612, Scrutton,
          L.J.] According to Halsbury's Laws of England, 4th Edn.,
          Vol. 16, "after taking an advantage under an order (for
E         example for the payment of costs) a party may be
          precluded from saying that it is invalid and asking to set it
          aside''. (para 1508)"

         16. In America Estoppel by acceptance of benefits is one
    of the recognized situations that would prevent a party from
F   taking up inconsistent positions qua a contract or transaction
    under which it has benefited.

         17. American Jurisprudence, 2nd Edition, Volume 28,
    pages 677-680 discusses 'Estoppel by acceptance of benefits'
G   in the following passage:

          "Estoppel by the acceptance of benefits: Estoppel is
          frequently based upon the acceptance and retention, by
          one having knowledge or notice of the facts, of benefits
          from a transaction, contract, instrument, regulation which
H
     SHYAM TELELINK LTD. v. UNION OF INDIA                  943
               [T.S. THAKUR, J.]

    he might have rejected or contested. This doctrine is           A
    obviously a branch of the rule against assuming
    inconsistent positions.

      As a general principle, one who knowingly accepts the
    · benefits of a contract or conveyance is estopped to deny      8
      the validity or binding effect on him of such contract or
      conveyance.

    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 conscience."                              C

    18.' For the reasons set out by us hereinabove, we have .
no hesitation in holding that the appellant was not entitled to
question the terms of the Migration Package after
unconditionally accepting and acting upon the same.             o
   · 19. In the result this appeal fails and i_s hereby dismissed
but in the circumstances
              .             without any order as to costs.
                                  ~




K.K.T.                                      Appeal dismissed.