Srinagar, Nov 25: The High Court of J&K and Ladakh on Friday held that exchange of proprietary land for encroached kahcharai (grazing) land is not permissible now.
A bench of Justice Sanjay Dhar said this while dismissing a plea by one M Malik seeking directions 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.
The Court observed that the petitioner’s claim with regard to exchange of his proprietary land against the kahcharai land 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.
The Court pointed out 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 court said, the 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.”
From the perusal of the provision, the court said, it is 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,” it said.
As per this judgment in which Sr AAG Mohsin Qadri was representing the government, no kahchari land can be exchanged now.