Srinagar, Nov 25: The High Court of Jammu & Kashmir and Ladakh Friday held that the exchange of proprietary land for encroached kahcharai land is not permissible and the Deputy Commissioner concerned had no powers to accept any such offer.
The court passed the ruling in a plea of Mehraj-ud-Din Malik seeking grant of permission in his favour for exchange of land measuring 06 marlas situated at village Pariswani, Tangmarg in lieu of proprietary land measuring 06 marlas situated in the same area.
Dismissing a plea, Justice Sanjay Dhar noted that the claim of the petitioner regarding 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 on October, 26, 2020.
As per the said provision, the bench recorded that before removing encroachment on a kahcharai land, the occupier has to be given a notice in writing affording him an opportunity, inter alia, to offer an equivalent suitable area in exchange from out of his proprietary land.
The Collector was the competent authority to accept or reject the offer made for exchange of land, it noted.
The Sub-section (2) of Section 133 of the Land Revenue Act, on the basis of which petitioner has projected his claim regarding offer of proprietary land in exchange of kahcharai land, has been substituted by an entirely new provision.
The respondents submitted that sanction has been accorded to the exchange of land in favour of one, Abdul Rahman Malik by Deputy Commissioner, Baramulla, in exercise of his powers under Section 133(2) of the Land Revenue Act pursuant to the orders passed by the Court in 2019.
It was submitted that when the case for exchange of land pursuant to similar direction passed by the court in the case of petitioner was in process, by that time, the provisions contained in Section 133 of the Land Revenue Act underwent amendment whereby sub-section (2) of the said provision was substituted by a new provision, according to which the power relating to exchange of land has been taken away and now the Deputy Commissioner has no such power.
Perusing the material on record, the court underscored 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 to accept the offer of the petitioner,” the court said.
Justice Dhar underscored that the respondents were right in submitting that by the time the directions of the court were under consideration, “The provision relating to Section 133(2) of the Land Revenue Act underwent change and, as such, the claim of the petitioner could not be considered.” court set aside.
