No Statutory Basis for Kahcharaie Land Exchange After 2020 Amendment, J&K High Court Holds

The J&K and Ladakh High Court dismissed a former Congress leader’s plea to exchange proprietary land for encroached Kahcharaie land, holding that the 2020 amendment to Section 133(2) of the Land Revenue Act removed that power entirely.

The High Court of Jammu & Kashmir and Ladakh at Srinagar has held that, following the substitution of Section 133(2) of the Land Revenue Act by S.O. 3808(E) dated 26 October 2020, there is no longer any statutory provision permitting the exchange of Kahcharaie land against proprietary land. Justice M. A. Chowdhary, sitting singly, pronounced the judgment on 4 June 2026 in Peerzada Mohammad Syed v. State (now UT) of Jammu & Kashmir and Others, OWP No. 1068/2015. The court found the petitioner in unauthorised possession of 17 Marlas of Kahcharaie land adjoining his allotted plot at Friends Enclave, Humhama, and declined to issue a writ of mandamus directing the respondents to consider his exchange offer. The petition was partly allowed only to the extent that the petitioner cannot be evicted without following due process of law.

The Dispute Before the Court

Peerzada Mohammad Syed, a resident of Friends Enclave, Airport Road, Budgam, was allotted Plot No. 21 at Friends Enclave, Humhama by the J&K Cooperative Housing Corporation Limited under the HIG Category, measuring 7,980 sq. ft. A perpetual lease deed was executed in his favour, and he raised residential construction on the plot.

Adjoining Plot No. 21 lay a strip of approximately 9–10 Marlas of vacant land, marked “N-23” by the Corporation. The petitioner constructed a shed over this land for security personnel and a lavatory block, asserting that the Corporation had allotted this strip to him vide communication No. JKGC/3/Humhama/2128-29 dated 20 November 2010, in recognition of his security concerns. The petitioner stated that he had faced militant threats throughout his political career, had been seriously injured in a militant attack, and that his house at Kokernag had been attacked multiple times. He had represented the Kokernag (Anantnag) Assembly Constituency in 1987, 2002, and 2008 as a Congress leader.

The dispute crystallised when revenue officials, acting on the instructions of the Divisional Commissioner, Kashmir, came on spot and demolished the surrounding wall and shed on the strip of land. The petitioner filed OWP No. 1068/2015 seeking a direction restraining the respondents from damaging existing structures and from evicting him from land “N-23”, and further directing the respondents to consider his application for exchange of the plot in accordance with law.

The Respondents’ Case: Encroachment on Kahcharaie Land

The State respondents — the UT of J&K, the Divisional Commissioner Kashmir, the Deputy Commissioner Budgam, and the Tehsildar Budgam — filed objections asserting that the petitioner had encroached upon 17 Marlas of Kahcharaie land from Survey No. 1076/2, Village Humhama, without any authority of law.

Before initiating removal proceedings, the revenue authorities had sought full details of the land allotted by the J&K Cooperative Housing Corporation. The Corporation responded vide No. JKCHC/12/F/E/H dated 4 July 2014, confirming that only 1 Kanal, 9 Marlas, and 6 Sirsai had actually been allotted to the petitioner. A demarcation conducted on spot revealed that the petitioner was in occupation of excess land measuring 17 Marlas, recorded as Kahcharaie land. A Committee of revenue officials headed by the Tehsildar, Budgam, constituted by the District Magistrate, confirmed the encroachment.

In compliance with Order No. DCB/SQ/292 dated 20 December 2014 issued by the Deputy Commissioner, Budgam, the shed and boundary wall were demolished. The respondents further contended that the petitioner had never filed a proper application for exchange as prescribed under the applicable rules — he had submitted only a simple application without identifying any specific proprietary land to be offered in lieu of the Kahcharaie land.

The Exchange Application and Its Rejection

The petitioner had applied to the District Collector, Budgam for allotment of the Kahcharaie land in exchange for proprietary land. That application was considered and rejected by order dated 27 June 2016. The District Collector found it without merit because the petitioner had not proposed any specific proprietary land in exchange. The respondents maintained before the High Court that this deficiency was fatal to the petitioner’s claim even under the pre-amendment regime.

Section 133(2) of the Land Revenue Act: Before and After the 2020 Amendment

The legal pivot of the case was Section 133(2) of the Land Revenue Act as it stood before its substitution by S.O. 3808(E) dated 26 October 2020. Under the pre-amendment provision, before removing any encroachment on Kahcharaie land, the occupier was entitled to a written notice affording him an opportunity to offer an equivalent suitable area in exchange from his proprietary land. The Collector was the competent authority to accept or reject such an offer.

The substituted provision, as it now stands, reads in material part that every person shall exercise the right of user in respect of roads, water channels, water courses, water sources, and other common land, and that such right of user shall not be deemed to include or confer any right of encroachment, whether by construction, fencing, walling, or otherwise.

Justice Chowdhary held that the new sub-section 133(2) contains no provision for exchange of Kahcharaie land against proprietary land. The Deputy Commissioner no longer has the power to accept any such offer. In the absence of a legal basis or statutory framework, the court held it would not be open to issue a writ of mandamus directing the respondents to accept the petitioner’s exchange offer.

The court observed that even in 2016, before the amendment, the District Collector had rejected the exchange application because no specific proprietary land had been offered. The amendment had since removed the exchange mechanism altogether, making the petitioner’s prayer doubly untenable.

Why a Writ of Mandamus Could Not Issue

A writ of mandamus lies to compel a public authority to perform a duty imposed by law. Where the statute itself no longer imposes any such duty — or has affirmatively removed the power — there is no legal obligation that can be enforced through mandamus. Justice Chowdhary applied this principle directly: since Section 133(2) as amended does not permit exchange of Kahcharaie land, there is no duty on the respondents to consider such an offer, and the court cannot create one by judicial direction.

The petitioner was accordingly found to be in unauthorised possession of the 17 Marlas of Kahcharaie land. The respondents were declared at liberty to seek eviction or removal of the encroachment in accordance with law.

Order

OWP No. 1068/2015 was disposed of as partly allowed. The sole relief granted was a direction that the petitioner shall not be evicted without following due course of law. All pending interlocutory applications, if any, were also disposed of. The judgment was approved for reporting.