The Division Bench of Justices Tashi Rabstan and Mohammad Yousuf Wani in an appeal against a judgment of the Single Judge, while upholding the judgment emphasized the legal principle that a lessee cannot accept the beneficial terms and conditions of the lease and avoid those which are unpalatable or may not be profitable to him, and permitting him to do so would mean allowing him to approbate and reprobate at the same time, which conduct is not countenanced by law. 

The Appellant, who was the also Petitioner before the Writ Court, had challenged an order of the Custodian Department whereby the leasehold rights in respect of the subject property were sanctioned to be transferred in his favor by the Custodian Department from the original lessee at a premium of Rs. 1.28 crore, with an advance payment of Rs. 20 Lacs, which was also paid by the Appellant/Petitioner. The Order was challenged, inter-alia, on the ground that he is not liable to pay the premium as he has not been sanctioned a fresh lease, but the leasehold rights in respect of the subject land have been transferred to him from the lessee, and that under rule 13- C of the Rules of 2008, framed under Jammu and Kashmir State Evacuee (Administration of Property) Act, 2006 (hereinafter referred to as “the Act‟), premium can again be charged at the time of fresh allotment /lease.Besides, as per the Appellant/Petitioner, even the lessee was not liable to pay the premium as the lease deed commenced from 1st of March 1985, that is, prior to SRO 149 of 1985 under which premium is payable. However, the Single Judge dismissed the Writ Petition while observing that the petitioner was well within his rights to reject the offer of the Custodian General, but he accepted the order in its entirety except to the extent of payment of remaining premium amount, and that he has not only entered upon the possession of the subject land but put the same also to his beneficial use as well since 2013; holding ultimately that “the plea of the petitioner that he could not be asked to pay the premium cannot be accepted under law”. 

The Division Bench upon consideration of the case agreed with the argument of the Respondents that the contention of the appellant that no premium is leviable in the case as the lease of erstwhile lessee was in force before 5th of April 1985 is not justified under law because the payment of premium is provided under the provisions of Section 10-A (3) of the Act itself with effect from 1977, and observed, “there was no bar for the respondent-department to fix the premium in terms of the provisions of Section 10-A Clause (3) while making the allotment of the leasehold rights in respect of subject land upon transfer in favour of the present appellant”.

It was observed that the leasehold rights in respect of the subject land were allotted to the appellant for all practical purposes, vide Order No. 217 of 2015 dated 15.02.2013 (the impugned order) and the fact of the allotment being by way of transfer is immaterial. The Court further noted that “the rules under the Act came to be framed by the Government in exercise of the powers conferred by Section 39 of the Act in the year Svt 2008 corresponding to the year 1951 A.D. Rule 13 -C of the rules of 2008 also provides for fixation of the premium besides ground rent in respect of the lease of vacant evacuee land.”

Additionally, the Court also noted that the present appellant had consented to the order dated 15.02.2013 which is evidenced by his entering into the possession of the subject land and more especially the deposition of Rs. 20.00 lacs by way of an advance part payment of premium, and thus, observed, “in the facts and circumstances of the case the appellant is estopped under law to dispute the condition No. 1 (of payment of premium of Rs. 1.28 Crores) of Order dated 15.02.2013 of respondent No.2 and that too after implied acceptance of the same”.

Further, the Division Bench also observed that the contention of the appellant that lease was granted in favour of the appellant for the remaining period of the lease of the erstwhile lessee, operates as no legal bar for fixation of premium as according to the provisions of Rule 13-C, lease of any evacuee vacant land can be made for a period not exceeding 40 years.