PEERZADA MOHAMMAD SYED vs SATTE OF JK AND ORS

HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR







OWP No. 1068/2015



nd
Reserved On: 2 of June, 2026.
th
Pronounced On: 4 of June, 2026.
th
Uploaded On: 4 of June, 2026.


Whether the operative part or
full Judgment is pronounced: Full.




Peerzada Mohammad Syed , Age: 60 Years
S/O Peerzada Mohammad Yousuf
R/O Friends Enclave, Airport Road,
Budgam.

… Petitioner(s)

Through: -
Mr M. Ayoub Bhat, Advocate with
Ms Mahjabeen Bhat, Advocate.

V/s

1. State (now UT) of Jammu & Kashmir,
Through Commissioner/ Secretary to Govt.,
Revenue Department, Civil Secretariat,
Jammu/ Srinagar.

2. Divisional Commissioner,
Kashmir, Srinagar.

3. Managing Director,
J&K Cooperative Housing Corporation Ltd.,
Jammu/ Srinagar.

4. Deputy Commissioner,
(District Collector), Budgam.

5. Tehsildar, Budgam.
… Respondents
Through: -
Mr Ilyas Nazir Laway, Government Advocate.

CORAM: HON’BLE MR JUSTICE M. A. CHOWDHARY, JUDGE.



(JUDGMENT)




01. Through the medium of the present Petition, the Petitioner has
sought a direction in the name of the Respondents, thereby commanding

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them not to damage the present structures existing on spot in the land
identified as “N-23” to the extent of 10 Marlas adjoining Plot No.N-21, as
shown in the site plan, and further restraining the Respondents from
illegally evicting him from the above said land, besides, a direction unto the
Respondents directing them to consider his request for exchange of the plot
of land as per the law and the norms and decide the application submitted
by the Petitioner in this behalf.
02. The Petitioner claims to be an active political worker
associated with the All-India Congress Committee, having remained
President of the State Unit of the Youth Congress as also President of the
State Unit of the All-India Congress Committee. The Petitioner is stated to
have been representing the Assembly Constituency of Kokernag
(Anantnag) in 1987, 2002 and 2008.
03. It is further stated by the Petitioner in his Petition that, given
the political scenario of J&K, the Petitioner had, all along, faced the threat
of militants and his life and property have been in constant threat of the
militants, so much so, the Petitioner was attacked by the militants wherein
he was seriously injured, besides his house at Kokernag was also attacked
several times; that the J&K Housing Corporation Limited has been in
possession of land as rightful owner, commonly known as “Friends Enclave
Humhama”, and as per its policy coupled with the rules in vogue governing
the subject, allotted plots to several persons, including the Petitioner herein,
the main purpose whereof was to secure the smooth residence to the
persons having threat to their life; that, in this behalf, Plot No.21 at Friends
Enclave, Humhama was allotted to the Petitioner and a perpetual lease was
executed in favour of the Petitioner to that effect; that the Petitioner has
raised construction on the said plot for residential purposes.
04. It has been further asserted that since some 09-10 Marlas of
land, approximately, adjoining the said plot, marked as “N-23” by the J&K
Cooperative Housing Corporation Limited, was vacant and, in order to

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secure his residence constructed over Plot No.21, the Petitioner had
constructed a shed over the said land for security personnel, besides a
lavatory block; that, thereafter, an application was submitted by the
Petitioner to the J&K Cooperative Housing Corporation Limited for
allotment of this portion of land adjoining Plot No.21 and, accordingly, vide
th
No. JKGC/3/Humhama/2128-29 dated 20 of November, 2010, the said
piece of land was also allotted to the Petitioner, in recognition of security
concerns of the Petitioner.
05. The Petitioner pleads that, all of a sudden, on the instructions
of Respondent No.2, the local revenue officials came on spot and damaged
the surrounding wall of the above said adjoining land “N-23” and also
damaged the shed constructed by the Petitioner; that, although, the said
piece of land, i.e., “N-23”, has been allotted to the Petitioner, even then the
Petitioner had made a request to the Revenue Authorities concerned that the
land above mentioned, i.e., “N-23” may kindly be given to the Petitioner in
exchange of some suitable land to be provided by the Petitioner; that the
said application of the Petitioner has not been decided by the Respondents
despite lapse of considerable period of time; that the whole area on spot is a
built up area and the aforementioned piece of land “N-23” is not fit for
Kahcharaie purposes; that the Respondents have not provided any
opportunity of hearing to the Petitioner before coming on spot and
damaging the above said surrounding wall and shed, as such, the action of
the Respondents, being illegal, is liable to be set at naught, besides the
Respondents are required to be directed not to evict the Petitioner without
adopting the due procedure prescribed by law.
06. Objections stand filed on behalf of Respondents No. 1, 2, 4 and
5, wherein it has been, inter alia , stated that the Petitioner has encroached
upon 17 Marlas of Kahcharaie land by taking law into his own hands and
has, without any authority of law, started raising construction upon it, as
such, the Respondents have every authority to remove the encroachment

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and to demolish the constructions raised by the Petitioner upon the
Kahcharaie land; and that the Petitioner has no locus to stop the
Respondents from acting as per the procedure prescribed under law and that
the Petitioner cannot use the forum of this Court to stop the Respondents
from proceeding in a lawful manner for removing the encroachment.
07. The Respondents, in their Objections, have further delineated
that, prior to removing the encroachment of Kahcharaie land on spot, full
details of the land allotted by J&K Cooperative Housing Corporation were
sought from the said Corporation which were accordingly received vide No.
th
JKCHC/12/F/E/H dated 4 of July, 2014, indicating therein that only 01
Kanal, 09 Marlas and 06 Sirsai were, in fact, allotted to the Petitioner; that,
thereafter, demarcation was carried out on spot, wherein it got revealed that
the Petitioner is in occupation of excess land measuring 17 Marlas from
Survey No.1076/2 which is recorded as Kahcharaie land of Village
Humhama; that the demarcation conducted on spot made it clear that the
Petitioner has illegally occupied 17 Marlas of Kahcharaie land over which
he has no right and the Respondents are duty bound to remove the
encroachment on any Kahcharaie land; that, in compliance of Order No.
th
DCB/SQ/292 dated 20 of December, 2014, issued by the Deputy
Commissioner, Budgam, the illegal encroachment was removed by
demolishing the shed and boundary wall; and that the Petitioner never ever
applied for any exchange of land, as is prescribed under the provisions of
the law/ rules governing the field, rather, a simple application was filed
without informing about his proprietary land sought to be offered in lieu of
the Kahcharaie land situate at Humhama, as such, no consideration was
accorded to the same.
08. Heard learned Counsel for the parties, perused the pleadings on
record and considered the matter.
09. Admittedly, the Petitioner was allotted Plot No.21 at Friends
Enclave, Humhama, developed by Respondent No.3-J&K Co-Operative

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Housing Corporation, under HIG Category measuring 7980 sft., for which a
perpetual lease deed was also executed by and between the parties. It is also
not in dispute that the Petitioner has raised construction on the aforesaid
allotted plot for his residential purpose. However, the dispute appears to
have arisen when the Respondents had gained the knowledge of the fact
that the Petitioner has encroached upon 17 Marlas of Kahcharaie land,
adjoining the plot allotted to him, by taking law into his own hands and has,
without any authority of law, started raising construction upon it.
Resultantly, the Respondents initiated proceedings against the Petitioner for
removing the said encroachment upon the Kahcharaie land. In such a
situation, the Petitioner is stated to have raised his claim before the
Respondents over the said Kahcharaie land by making an offer of exchange
of his proprietary land.
10. The Respondent-Housing Corporation had allotted the strip of
land in question adjoining the Petitioner’s Plot No. 21 vide communication
th
dated 20 of November, 2010, however, the Petitioner knew that this strip
of land was Kahcharaie land, as such, he applied to the District Collector,
Budgam to allot him Kahcharaie land in exchange.
11. The application of the Petitioner submitted to the District
Collector for exchange had been considered by him and, vide Order dated
th
27 of June, 2016, the same was found as without any ground, in view of
the fact that the Petitioner had not proposed any specific proprietary land, in
exchange and, therefore, the application was rejected.
12. A Committee of Revenue officials, headed by Tehsildar,
Budgam, had been constituted by the District Magistrate, which found the
land in question having been encroached upon by the Petitioner as
Kahcharaie land.
13. The claim of exchange of proprietary land against Kahcharaie
land rests on the provisions contained in Section 133(2) of the Land

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Revenue Act, as was existing prior to its amendment vide S. O. 3808 (E)
th
dated 26 of October, 2020. In terms of the said provision, before removing
any encroachment on a Kahcharaie land, the occupier has to be given a
notice in writing, thereby affording him an opportunity, inter alia , to offer
an equivalent suitable area in exchange from out of his proprietary land.
The said provision notified the Collector concerned as the competent
authority to accept or reject any offer made for exchange of land. However,
sub-section (2) of Section 133 of the Land Revenue Act, which was
concerning the claims regarding offer of proprietary land in exchange of
Kahcharaie 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.”

14. In view of the amendment of Section 133 (2) of the Land
Revenue Act, as on date, there is no such provision to exchange Kahcharaie
land against the proprietary land. This plea of the Petitioner to direct
consideration of the exchange offer is, thus, not tenable now. The same,
even in the year 2016, had been turned down by the District Collector,
Budgam before the aforesaid amendment, for the reason that there was no
specific offer for exchange.

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15. From a plain reading of the aforesaid provision of law, it is
manifestly clear that the exchange of proprietary land for encroached
Kahcharaie land is not permissible now and the Deputy Commissioner
concerned has no power to accept any such offer. That being so, in 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 for exchange of
his proprietary land against the Kahcharaie land.
16. The Petitioner is, thus, found to be in unauthorized possession
of the land in question, which is Kahcharaie in nature, and the Respondents
are at liberty to seek eviction or removal of the said encroachment from the
land in question in accordance with law.
17. Viewed thus, the present Petition is disposed of as partly
allowed to the extent by directing that the Petitioner shall not be evicted
without following due course of law. Pending CM(s), if any, shall also
stand disposed of, accordingly.
(M. A. CHOWDHARY)
JUDGE
SRINAGAR
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June 4 , 2026
“TAHIR”
i. Whether the Judgment is approved for reporting? Yes.
Tahir Manzoor Bhat
I attest to the accuracy and
authenticity of this
document