Appellant's Plea Dismissed; Court Affirms Inability of Collector to Sanction Land Exchange Post-Amendment
In a significant ruling, the Jammu and Kashmir High Court dismissed the appeal of Mehraj-ud-Din Malik, affirming that the exchange of proprietary land for encroached Kahcharaie land is not permissible under the amended Section 133(2) of the Land Revenue Act, Samvat 1996. The Division Bench, comprising Justices Sindhu Sharma and Shahzad Azeem, upheld the Writ Court's decision, emphasizing the statutory prohibition against such land exchanges following the legislative amendment.
The appellant, Mehraj-ud-Din Malik, had sought the exchange of 06 Marlas of Kahcharaie land with his proprietary land of equal size in the same village. However, his plea was dismissed based on the amendment to Section 133(2), which withdrew the Collector's power to sanction such exchanges.
The Court noted that Malik's application was filed prior to the amendment but clarified that the application did not create an enforceable right in the absence of action by a competent authority under the pre-amended law. Moreover, the Court held that any claim based on actions taken during Malik's minority was void ab initio, citing the legal incapacity of minors to contract or transfer property without a guardian.
The judgment also referenced a Supreme Court precedent, reiterating the illegality of encroachment on Shamilat Deh/Kahcharaie land, which must be restored for communal use. The Court emphasized that the statutory amendment merely codified existing legal principles against such encroachments.
Bottom Line:
Exchange of proprietary land for encroached Kahcharaie land is not permissible under the amended Section 133(2) of the Land Revenue Act, Samvat 1996. The Deputy Commissioner lacks statutory competence to sanction such exchanges post-amendment.
Statutory provision(s): Land Revenue Act, Samvat 1996, Section 133(2) (Amended and Pre-amended), Legal principle on minors' capacity to contract.
