Illegal Occupation Of Shamilat/Kahcharaie Land Can Never Ripen Into Legal Right: J&K&L High Court

Reiterating that illegal occupation of common village land can never crystallise into a legal right, even where permanent structures have been raised, the High Court of Jammu and Kashmir and Ladakh has held that the law prohibiting encroachment upon Shamilat/Kahcharaie land was firmly in existence much before the 2020 amendment to Section 133(2) of the Land Revenue Act.Upholding this statutory reinforcement of a settled legal position, a Division Bench comprising Justice Sindhu Sharma and Justice Shahzad Azeem ruled that an encroacher has no enforceable right either to retain such land or to seek a writ of mandamus for its exchange with proprietary land.Background of the Case:The court was hearing an appeal arising from the dismissal of a writ petition filed by one Mehraj-ud-Din Malik, a resident of District Baramulla, who had sought exchange of Shamilat Deh/Kahcharaie land with an equivalent extent of his proprietary land in the same village. The appellant claimed that both parcels were adjacent, of equal value, and suitable for grazing purposes. His grievance stemmed from the refusal of the revenue authorities to consider his request for exchange, prompting him to approach the writ court, which dismissed his plea by relying upon the amended Section 133(2) of the Land Revenue Act, Samvat 1996. Aggrieved, the appellant carried the matter in intra-court appeal.Appearing for the appellant, Mr. Gulzar Ahmad Bhat, Advocate, contended that the appellant had applied for exchange well before the amendment of Section 133(2) on 26 October 2020 and, therefore, his case ought to have been considered under the unamended provision. It was further urged that similarly placed persons, including the appellant's uncle, had been granted exchange of Kahcharaie land, and denial of identical treatment amounted to discrimination.Per contra, Mr. Hakeem Aman Ali, Deputy Advocate General, representing the respondents, argued that by the time the appellant's case came up for consideration, the statutory power of the Collector to permit exchange of Shamilat/Kahcharaie land had been withdrawn by amendment. It was asserted that no vested or accrued right had crystallised in favour of the appellant and that parity could not be claimed with cases decided prior to the amendment.Court's Analysis and Observations:Considering the rival submissions, Justice Shahzad Azeem, authoring the judgment for the Bench, explained that under the pre-amended Section 133(2), the Collector merely enjoyed discretion to permit exchange of Shamilat/Kahcharaie land and there was never any statutory compulsion to grant such permission. With the substitution of Section 133(2) in October 2020, the entire enabling provision permitting exchange was removed from the statute book, leaving no authority in law to approve such transactions.The Court further observed that a pending or incomplete application does not create any accrued or vested right. Unless the competent authority had actually considered and decided a case prior to the amendment, an applicant cannot insist upon application of the old law. In the present case, the appellant's claim had not matured into any legally enforceable right before the amendment came into force.On facts, the Bench highlighted serious infirmities in the appellant's case. It noted that the appellant had failed to place on record the original application for exchange or any documentary proof establishing ownership and possession of the proprietary land offered in lieu thereof. The Court also noticed contradictions regarding the year in which the application was allegedly filed.Moreover, the appellant admitted that he was a minor at the relevant time, yet no material was produced to demonstrate that the application was made through a natural or court-appointed guardian. The Court explained that a minor lacks legal capacity to deal with immovable property and any such act, unless undertaken through a legally recognised natural or court-appointed guardian, would be void. In the absence of proof of lawful representation, the very foundation of the appellant's claim was found to be doubtful.Expounding further, the Bench placed strong reliance on binding precedent of the Supreme Court of India governing common village land and emphasised that even where constructions are raised on Shamilat land, such occupation remains illegal and cannot be regularised. The Court reiterated that State Governments are duty-bound to remove such encroachments.Referring to Jagpal Singh v. State of Punjab, the Court explained that Kahcharaie/Shamilat land is meant for common use of villagers and cannot be permitted to be appropriated by individuals through encroachment, influence, or administrative indulgence.“Even if the houses are built up by the trespassers by encroaching upon the Shamilat land, it has been held to be illegal and prohibited by the Hon'ble Supreme Court way back in the year 2011 and direction was issued to all the State Governments to remove...

Illegal Occupation Of Shamilat/Kahcharaie Land Can Never Ripen Into Legal Right: J&K&L High Court

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