Introduction:

In Mehraj Ud Din Malik v. Union Territory of Jammu & Kashmir, Citation 2026 LiveLaw JKL, the High Court of Jammu and Kashmir and Ladakh delivered a significant judgment reaffirming that illegal occupation of common village land can never crystallise into a legally enforceable right, even where permanent constructions have been raised. The Division Bench comprising Justice Sindhu Sharma and Justice Shahzad Azeem was seized of an intra court appeal challenging the dismissal of a writ petition in which the appellant sought exchange of Shamilat Deh Kahcharaie land with an equivalent extent of his proprietary land situated in the same village in District Baramulla. The appellant contended that both parcels were adjacent, equal in value, and suitable for grazing. However, the revenue authorities had declined to entertain his request, leading him to invoke the writ jurisdiction of the High Court. The writ court dismissed the petition by placing reliance on the amended Section 133(2) of the Jammu and Kashmir Land Revenue Act Samvat 1996, which removed the statutory power of the Collector to permit exchange of Shamilat or Kahcharaie land. Aggrieved, the appellant approached the Division Bench. The case required the Court to examine whether a pending application filed before the 2020 amendment conferred any vested right, whether parity could be claimed with earlier beneficiaries, and whether illegal occupation of common land could ever be regularised through judicial intervention.

Arguments of the Appellant:

Appearing for the appellant, Mr Gulzar Ahmad Bhat, Advocate, argued that the appellant had submitted his application for exchange prior to 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 contended that the amendment could not operate retrospectively to defeat a pending claim. According to the appellant, under the earlier regime the Collector possessed discretion to permit exchange of Shamilat or Kahcharaie land with proprietary land, and since the application was made when such power existed, the authorities were bound to consider it under the old law. It was further urged that similarly placed persons, including the appellant’s uncle, had been granted exchange of Kahcharaie land in the past. Denial of similar treatment to the appellant, it was argued, amounted to discrimination and violation of equality principles. The appellant asserted that the land sought to be exchanged was adjacent to his proprietary land, of equivalent value, and would continue to serve grazing purposes even after exchange, thereby not prejudicing the interests of villagers. He maintained that his grievance was not about regularising encroachment but about a lawful exchange under statutory provisions that existed at the relevant time. The appellant also attempted to suggest that his application had been unfairly ignored and that administrative delay should not extinguish his entitlement. On these grounds, he sought issuance of a writ of mandamus directing the authorities to consider and grant the exchange.

Arguments of the Respondents:

Opposing the appeal, Mr Hakeem Aman Ali, Deputy Advocate General, representing the Union Territory authorities, submitted that by the time the appellant’s request came up for consideration, Section 133(2) had already been substituted and the enabling provision permitting exchange of Shamilat or Kahcharaie land had been completely withdrawn. It was argued that the Collector no longer had statutory authority to approve such exchange and, therefore, no mandamus could be issued to compel exercise of a power that no longer existed in law. The respondents emphasised that under the pre amended Section 133(2) the Collector merely enjoyed discretionary power and there was never any statutory obligation to grant exchange. A mere application did not create any accrued or vested right. It was contended that the appellant’s claim had not matured into any enforceable right before the amendment came into force. The respondents further submitted that parity could not be claimed with cases decided prior to the amendment because those decisions were taken under a different legal regime. They pointed out serious factual deficiencies in the appellant’s case, including absence of documentary proof of ownership of the proprietary land offered for exchange, contradictions regarding the date of application, and lack of evidence showing lawful representation when the appellant was a minor. It was asserted that the appellant had failed to establish any legal foundation for seeking exchange and that the appeal was devoid of merit.

Court’s Analysis and Judgment:

Justice Shahzad Azeem, writing for the Division Bench, undertook a detailed examination of the statutory framework and the legal principles governing common village land. The Court first analysed the scope of the pre amended Section 133(2) of the Land Revenue Act. It observed that even under the unamended provision, the Collector had only discretionary authority to permit exchange of Shamilat or Kahcharaie land. There was no statutory compulsion requiring the Collector to grant such exchange. Thus, even before the amendment, no person could claim exchange as a matter of right. The Court then noted that with the substitution of Section 133(2) in October 2020, the entire enabling provision permitting exchange was removed from the statute book. Consequently, the Collector was divested of authority to permit exchange of such land. The Bench held that once the power itself stood withdrawn, no mandamus could be issued to compel its exercise. The Court rejected the contention that filing of an application prior to the amendment created a vested right. It reiterated the settled principle that a pending or incomplete application does not give rise to an accrued right unless the competent authority has actually taken a decision prior to the change in law. In the present case, the appellant’s application had not been decided before the amendment came into force. Therefore, no enforceable right had crystallised. The Court further examined the factual matrix and found multiple infirmities. It observed that the appellant had failed to produce the original application for exchange or any documentary evidence establishing ownership and possession of the proprietary land proposed for exchange. There were contradictions regarding the year of filing of the application. Significantly, the appellant admitted that he was a minor at the relevant time. The Court emphasised that a minor lacks legal capacity to deal with immovable property and that any such transaction, unless undertaken through a legally recognised natural or court appointed guardian, would be void. No material was placed on record to show that the application was made through lawful representation. This deficiency, the Court held, struck at the very root of the appellant’s claim. Beyond statutory interpretation, the Bench placed strong reliance on binding precedent of the Supreme Court, particularly Jagpal Singh v. State of Punjab, wherein the apex court categorically held that Shamilat land is meant for common use of villagers and that encroachments upon such land are illegal and must be removed. The Court reiterated that even where permanent constructions have been raised on Shamilat land, such occupation remains unlawful and cannot be regularised. It emphasised that State Governments are duty bound to remove encroachments and protect common land. The Bench clarified that the 2020 amendment did not introduce a new prohibition but merely codified and reinforced an already settled legal position. It declared that illegal occupation of Kahcharaie land cannot be converted into a legal right through administrative indulgence or judicial orders. The Court concluded that the amended Section 133(2) applied squarely to the appellant’s case and that he had no enforceable right either to retain the land or to seek its exchange through a writ of mandamus. Dismissing the appeal as devoid of merit, the Bench vacated all interim directions and reaffirmed that courts cannot be invoked to legitimise encroachment on common village land.