Exchange Of Proprietary Land In Lieu Of Encroached Public Grazing Land Not Permissible Anymore: JKL High Court Clarifies

The clarification was issued by a bench of Justice Sanjay Dhar while hearing a plea in terms of which the petitioner had sought directions upon the respondents for grant of permission in his favour for exchange of six marlas land Kahcharai land at Kawarhama Baramulla district in lieu of proprietary land of same area in the vicinity.

In his plea the petitioner submitted that he along with his uncle had applied for exchange of proprietary land against the kahcharai land in terms of Section 133(2) of the Land Revenue Act, The petitioner further submitted that in the case of his uncle the respondents issued an order under the seal and signature of respondent Deputy Commissioner, Baramulla, whereby sanction has been accorded to the requested exchange, but the similar treatment is being denied to the petitioner, hence he was constrained to file the present writ petition.

Adjudicating upon the petitioners claim with regard to exchange of his proprietary land against the kahcharai land Justice Dhar observed that the said claim solely rests on the provisions contained in Section 133(2) of the Land Revenue Act which was existing prior to its amendment vide S.O.3808(E) dated 26.10.2020.

As per the provision, before removing encroachment on a kahcharai land, the occupier has to be given a notice in writing affording him an opportunity to offer an equivalent suitable area in exchange from out of his proprietary land, Justice Dhar noted, adding that as per the said provision, the Collector was the competent authority to accept or reject the offer made for exchange of land.

However, the bench took note of the fact that the said Section 133(2) of the Land Revenue Act, has been substituted by an entirely new provision, which reads:

"(2) Prevention of encroachments on or cultivation of common land, or land reserved for public purposes or of which cultivation has been prohibited or is objectionable, or, by person, not entitled to, bring it under cultivation.–– (a) Subject to any law, agreement, custom, usage or any decree or order of any Court or other authority, for the time being in force, every person shall exercise the right of user in respect of any road, street, lane, path, Water Channel, Water Course and Water Source and other common land defined as such in any law or declared as such by the Government or the Board; (b) The right of user permitted by clause (a) shall not be deemed to include or otherwise confer, create or assign any right of encroachment, whether by means of construction, including fencing, walling or putting any barrier or by breaking up of land, diversion or otherwise."

Clarifying the existing position of law on the subject the bench explained that the said provision after amendment makes it amply clear that the exchange of proprietary land for encroached kahcharai land is not permissible now and the Deputy Commissioner concerned has no power to accept any such offer.

"In the absence of any legal basis or statutory framework for considering the offer of the petitioner, it would not be open to this Court to issue a Writ of Mandamus against the respondents (authorities) to accept the offer of the petitioner," concluded the bench while dismissing the plea.

Case Title : Meraj Ud Din Malik Vs UT of J&K

Citation : 2022 LiveLaw (JKL) 245

Coram : Justice Sanjay Dhar

Counsel For Petitioner : Mr Gulzar Ahmad Bhat

Counsel For Respondent : Mr Mohsin Qadri Sr AAG, Ms Rekha Wangnoo

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