Jammu & Kashmir High Court - Srinagar Bench
Abdul Karim Bhat vs Ut Of J&K & Others on 24 April, 2023
Regular List
S.No.9
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(C) No.2342/2021
CM No.7525/2021
ABDUL KARIM BHAT ... PETITIONER(S)
Through: Mr. Gulzar Ahmad Bhat, Advocate.
Vs.
UT OF J&K & OTHERS ...RESPONDENT(S)
Through: Ms. Maha Majid vice
Mr. Mohsin Qadiri, Sr.AAG
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
24.04.2023
1) The petitioner has filed the instant writ petition seeking a
direction upon respondents to grant sanction/permission in his favour
for exchange of proprietary land measuring 08 marlas under Khasra
No.58 situated at village Khawajagund Tehsil Khag in lieu of khacharai
land measuring 08 marlas falling under survey No.6 min situated in the
same area.
2) According to the petitioner, he has submitted an application
dated 09.04.2015 before the Dy.Commissioner concerned for exchange
of 08 marlas of proprietary land in lieu of 08 marlas of khacharai land
under survey No.58 situated in the same village, who in turn forwarded
the same to the Tehsildar concerned. It is submitted that a detailed
report was called from the field agencies regarding the offer made by
the petitioner and no objection certificates were also issued by the
different departments in support of the claim of the petitioner. It is
submitted that the petitioner is a poor person earning Rs.300/- per day
and has seven major daughters to support. It has been submitted that
vide communication No.OQ/TK/2017/02 dated 24.05.2017 it has been
reported that valuation of both the sites is equal.
3) According to the petitioner, this Court has in a number of other
similar cases passed directions to the respondents wherein the
respondents have been directed to take decision on the representation
of the petitioners therein, but in the instant case, the respondents are not
taking any decision on the application made by the petitioner, which
has compelled the petitioner to approach this Court.
4) No reply has been filed by the respondents though a number of
opportunities were granted to the respondents for the purpose. Their
right to file the reply to the writ petition, therefore, stands closed.
5) I have heard learned counsel for the parties and perused the
record.
6) The claim of the petitioner with regard to the 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 said provision, before removing encroachment on a kahcharai
land, the occupier has to be given a notice in writing affording him an
WP(C) No.2342 of 2021 Page 2
opportunity, inter alia, to offer an equivalent suitable area in exchange
from out of his proprietary land. As per the said provision, the Collector
was the competent authority to accept or reject the offer made for
exchange of land.
7) 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, which reads as under:
"(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."
8) From a perusal of the aforesaid provision, 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 to accept the offer of the petitioner.
WP(C) No.2342 of 2021 Page 3
9) In view of the aforesaid legal position, having regard to the fact
that provisions contained in Section 133(2) have undergone change, the
claim of the petitioner for grant of sanction to exchange proprietary land
in lieu of kahcharai land is no longer permissible under law.
10) It has been contended by learned counsel for the petitioner that
the Government of Jammu and Kashmir has come up with a policy for
protecting the rights of small land holders who are in possession of
kahcharai land and, as such, the possession of the petitioner over the
land in question is required to be protected. In this regard it is to be
noted that no such policy has been brought on record by the petitioner
nor the particulars of any such policy have even been mentioned by
him. Even if there is any such policy, it shall be open to the respondents
to deal with the case of the petitioner in accordance with such policy
but the petitioner cannot seek direction upon the respondents to grant
sanction for exchange of his proprietary land in lieu of kahcharai land
as the same is not permissible in law.
11) For the foregoing reasons, I do not find any merit in this petition.
The same is, accordingly, dismissed.
(SANJAY DHAR)
JUDGE
SRINAGAR
24.04.2023
Sarveeda Nissar
Whether the judgment is speaking: Yes/No
Whether the judgment is reportable: Yes/No
WP(C) No.2342 of 2021 Page 4
