Exchange of proprietary land for encroached Kahcharai land is impermissible following the amendment of Section 133(2).

The Petitioner, a prominent political figure, was allotted Plot No. 21 (HIG Category) at Friends Enclave, Humhama, by the J&K Cooperative Housing Corporation for residential purposes due to security threats

Adjacent to this plot was a strip of land identified as "N-23." The Petitioner constructed a security shed and lavatory on this strip and later obtained an allotment letter for it from the Housing Corporation in 2010

Revenue authorities classified N-23 as 17 Marlas of Kahcharaie (grazing) land under Survey No. 1076/2 and subsequently demolished the structures, alleging illegal encroachment

The Petitioner’s 2016 application to the District Collector for exchange of his proprietary land for this Kahcharaie land was rejected due to lack of specific land details

The Petitioner sought a writ to prevent eviction and to compel the Respondents to consider his exchange request

1. Whether the Petitioner has a legal right to seek the exchange of encroached Kahcharaie land for his proprietary land under current laws

2. Whether the Respondents can evict the Petitioner from the encroached land without following due process of law

The court primarily applied Section 133 of the Land Revenue Act.

While the erstwhile Section 133(2) allowed a collector to consider the exchange of proprietary land for Kahcharaie land, this provision was substituted by S.O. 3808 (E) dated 26th October 2020.

The amended Section 133(2) now prohibits the creation of any right of encroachment on common land or land reserved for public purposes, including through construction or fencing, and removes the statutory mechanism for land exchange.

The court reasoned that although the Petitioner initially sought exchange under the old law, his application was rejected in 2016 for failing to provide specific land details.

Crucially, the court found that the 2020 amendment to Section 133(2) of the Land Revenue Act completely abolished the provision for exchanging Kahcharaie land for proprietary land.

Consequently, there is no longer a legal basis or statutory framework that would allow the court to issue a Writ of Mandamus to compel such a consideration.

Since the land is recorded as Kahcharaie, the Petitioner’s possession is unauthorized.

However, the court maintained that even an unauthorized occupant cannot be removed by force without adhering to the procedural safeguards established by law.

The Petition was partly allowed only to the extent that the Respondents are directed not to evict the Petitioner from the 17 Marlas of land without following the due course of law. The Respondents remain at liberty to seek removal of the encroachment via legal procedure.