1. 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 Section 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 Section 7. 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 Section 18. 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 Section 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 proceedings that the acquisition was bad in the absence of a notification under Section 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.
2. 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 Section 4(1) on that date and that consequently its opponent was not entitled to any compensation.
3. 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 Section 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 Section 5A(2). On considering this report the Government may issue a notification under Section 6(1) declaring that the land is needed for a public purpose. In cases covered by Section 17(4) the Government may direct that the provisions of Section 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 Section 4(1). When the Collector has made an award under Section 11, he may under Section 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 Section 4(1) that can be awarded as compensation by the Collector under Section 11 and by the Court under Section 23. These provisions show that the issue of the notification under Section 4(1) is a condition precedent to the acquisition of the land. Where the procedure under Section 5A has to be followed, there must necessarily be an interval of time between the issue of the notification under Section 4(1) and the notification under Section 6(1). But where Section 5A does not stand in the way, the prior publication of a notification under Section 4(1) is not a condition precedent to the publication of a notification under Section 6(1). For this reason this Court held in Somavanti v. State of Punjab, :  2, S.C.R. 775that where an order was passed under Section 17(4) dispensing with the procedure under Section 5A, it was lawful for the Government to publish both the notifications on the same date.
4. The procedure under Section 5A being entirely for the benefit of the persons interested in the land they may waive it, see Toronto Corporation v. Russel,  A.C. 493. As stated in Halsbury's Laws of England, 3rd ed., Vol. 36, p. 444 : 'A statutory right which is granted as 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 Section 5A the Government may lawfully issue a composite notification under Sections 4(1) and 6(1).
5. 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 Section 6(1) on February 1, 1955. On finding that there was no separate notification under Section 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 Section 23. 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 4(1) and 6(1) 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 had 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 on 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 these circumstances 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 Court to the detriment of his opponents [see Rama Charan Chakrabarty v. Nimai Mondal, 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.
6. 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.