High Court Allows Eviction Proceedings Against Former J&K Congress President; Says Exchange Of Proprietary Land Impermissible

The Court further held that a former State Congress President was found to be in unauthorised occupation of Kahcharai land adjoining his allotted residential plot at Friends Enclave, Humhama, and the authorities were at liberty to remove the encroachment in accordance with law.

The Court was hearing a petition filed by Peerzada Mohammad Syed seeking directions restraining the authorities from damaging structures existing on land identified as “N-23” adjoining Plot No.21 at Friends Enclave, Humhama, and further seeking consideration of his request for exchange of proprietary land against the disputed Kahcharai land.

A Bench of Justice M. A. Chowdhary observed: “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.”

The Bench further observed, “That being so, 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 for exchange of his proprietary land against the Kahcharaie land.”

The Court also held, “The Petitioner is, thus, found to be in unauthorised 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.”

The petitioner, a sitting MLA of the Jammu & Kashmir Legislative Assembly, had earlier served as President of the State Unit of the Congress Party.

According to the petitioner, he had been allotted Plot No.21 at Friends Enclave, Humhama, by the J&K Cooperative Housing Corporation Limited under the HIG category owing to security concerns arising from militant threats and attacks allegedly faced by him in the past. A perpetual lease deed had also been executed in his favour, and residential construction had been raised on the allotted plot.

The petitioner claimed that approximately 9–10 marlas of adjoining land marked as “N-23” was lying vacant and that he had constructed a shed and lavatory block thereon for security personnel. He further asserted that the Housing Corporation had subsequently allotted the adjoining strip of land to him vide communication dated 20.11.2010 in recognition of his security concerns.

The dispute arose after revenue authorities initiated proceedings alleging that the petitioner had encroached upon Kahcharai land. The petitioner alleged that officials damaged portions of the surrounding wall and structures on the site and sought protection against eviction, besides seeking consideration of his proposal to exchange proprietary land against the disputed land.

The official respondents, however, contended that the petitioner had illegally encroached upon 17 marlas of Kahcharai land recorded in Survey No.1076/2 of Village Humhama and had raised unauthorised construction thereon.

The respondents further stated that demarcation conducted on the spot revealed that only 1 kanal 9 marlas and 6 sirsai had actually been allotted to the petitioner by the Housing Corporation and that the additional 17 marlas under occupation constituted unauthorised encroachment upon Kahcharai land.

The authorities also stated that the encroachment had been removed pursuant to orders issued by the Deputy Commissioner, Budgam.

The High Court observed that it was undisputed that the petitioner had originally been allotted Plot No.21 at Friends Enclave, Humhama and had raised residential construction thereon pursuant to a perpetual lease deed executed in his favour.

However, the Court noted that the controversy arose after authorities discovered that the petitioner had occupied additional Kahcharai land adjoining the allotted plot.

The Court observed: “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.”

The Bench noted that a Committee of Revenue officials headed by the Tehsildar, Budgam, had found the disputed land to be Kahcharai land under encroachment by the petitioner.

The Court further recorded that the petitioner himself was aware that the adjoining strip constituted Kahcharai land and had therefore applied before the District Collector seeking allotment of the same through exchange.

The Court observed that the petitioner's request for exchange had already been rejected by the District Collector in 2016 because no specific proprietary land had been identified for exchange.

Explaining the statutory framework, the Court examined Section 133(2) of the J&K Land Revenue Act as it existed before its amendment through S.O. 3808(E) dated 26.10.2020. The earlier provision permitted an occupier facing eviction from Kahcharai land to offer equivalent proprietary land in exchange, with the Collector being competent to consider such requests.

The Court, however, noted that Section 133(2) had subsequently been substituted by a completely new provision dealing with the prevention of encroachments upon common land and public land.

The amended provision, as reproduced by the Court, clarified that the right of user over common land cannot confer 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.”

The Court categorically held that after the amendment, there remained no legal mechanism permitting the exchange of Kahcharai land.

The Bench observed: “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.”

The Court further held that in the absence of any statutory basis, no writ of mandamus could be issued directing the authorities to accept or even consider such an exchange proposal.

The High Court concluded that the petitioner was in unauthorised occupation of Kahcharai land and that the authorities were legally entitled to initiate eviction and removal proceedings in accordance with the law.

The Court partly allowed the petition only to the limited extent of directing that the petitioner shall not be evicted except by following due process of law.

Case Title: Peerzada Mohammad Syed v. State (Now UT) of Jammu & Kashmir and Other

Citation: 2026 LiveLaw (JKL)

Appearances

For the Petitioner: M. Ayoub Bhat, Advocate with Mahjabeen Bhat, Advocate

For the Respondents: Ilyas Nazir Laway, Government Advocate

Click Here to Read/Download Judgment