High Court says no to private schools on State land

Srinagar, Aug 8: The High Court of Jammu and Kashmir and Ladakh Thursday directed that schools being run on property other than private land to acquire proprietary land or approach the government for the exchange in lieu of school land.

“Where the schools are being run on Kahcharie, State, Shamilat land, the petitioners (proprietors) can either acquire the proprietary land or approach the Principal Secretary to Government, Department of School Education or J&K Board of School Education with their plea as is made by them in their respective writ petitions for consideration which can also include the exchange of proprietary land in lieu of Kahcharie, State, and Shamilat land, as may be available under and in terms of the Land Revenue Act or any other applicable laws,” a bench of Chief Justice (Acting) Tashi Rabstan said in its order.

Deciding a batch of pleas, the court observed that the existence of a private school infrastructure on Kahcharie land if permitted to operate, run, and continue, would only encourage unscrupulous elements to make “use and misuse” of such instances and examples to grab common land.

The court observed that the Kahcharie land was meant for a particular purpose, “that is, for a common purpose, which cannot be permitted to be deviated”.

In support of their contention, the petitioners before the court had raised various grounds.

In response to a query whether the existence of the school infrastructure on Kahcharie land was relevant for the purposes of carrying out the educational programme and activities, the court said: “A private school in any manner cannot be treated and deemed as a government with connected matters school. So, the existence of a private school infrastructure on Kahcharie land if permitted to operate, run, and continue, will only encourage unscrupulous elements to make use and misuse of such instances and examples to grab Kahcharie  and common land.”

In support of its decision, the court relied on the Supreme Court’s judgment in Jagpal Singh versus the State of Punjab and Others, (2011) 11 SCC 396), and said in the judgment there that clear-cut directions deprecate the practice of usage of Kahcharie land for any other purpose.

The court pointed out that the Kahcharie land was meant for a particular purpose - the common purpose, which could not be permitted to be deviated.

“It is true that regularisation in exceptional cases might have been given but that does relate to landless labourers or members of SC and ST or where there is already a school, dispensary, or other public utility on the land,” the court said. “With respect to the petitioner-school, it cannot be said to be a public or government school but a “private school” and, therefore, does not come and fall within the ambit of exceptional cases.”

Underscoring that all religions say that education is a must for human beings, the court said: “If an individual wants to do a good for human being, let him or her establish a school on his/her proprietary land or on a self-acquired land and provide free education.”

The court observed that it was startling that the land meant for grazing and or common purposes was being utilised by certain individuals for personal and private purposes.

“Such acts should be dealt with iron hands,” it said.

In response to the question of whether the recognition and affiliation of the private unaided schools for the last several decades has the effect of the tacit consent of the government authorising establishment of these schools on Kahcharie land to be lawful and, therefore, under no circumstances affiliation and recognition can be denied to these schools, the court said: “Establishment of private schools on Kachcharie or common land ought not to have been permitted much less allowed to continue by the then authorities, functionaries, and departments and, therefore, such practice should be arrested by the government.”

The court also directed the government that the grant of affiliation or recognition to private schools or schools, running, operating, and functioning on Kahcharie land should be stopped.

The court held that the State or government was required to save, protect, and preserve the Kahcharie and State land for the purpose for which it is meant.

“So, a particular party cannot be permitted to reap special benefit from such property at the expense of the interest of the people at large,” it said.

The petitioners had approached the court following the Jammu and Kashmir administration’s rules of April 2022 which directed the Revenue Department to identify those schools built on the land other than private property for de-registration by the Education Department.

Their contention was that the authorities concerned, including the government itself, all along in the course of time had been well aware of the site status of the schools and still the affiliations and recognitions came to be granted and revised from time to time.

The petitioners stated that by virtue of SO 177 of 2022, the imminent fallout of the operation of SO 177/2022 would mean that their existing recognition for classes 9th, 10th, 11th, and 12th was going to be held up, thereby exposing students’ career to peril.

They contended that they would not be able to earn issuance of Registration Return Forms (RRFs) from the J&K Board of School Education for lack of renewal of the permission.

The court held that if the petitioner’s contention was accepted that the amendment had a prospective effect, it would amount to opening a floodgate and giving freehand to unscrupulous elements to grab Kahcharie or State land and show that Kahcharie and common land was in their possession since time immemorial.

The court concluded and ordered where the schools were being run on Kahcharie, State, and Shamilat land, the petitioners (proprietors) could either acquire the proprietary land or approach the Principal Secretary to Government, Department of School Education or J&K Board of School Education with their plea.

While the court ordered that all the applications should be made by petitioners within four weeks from today, it said: “Principal Secretary to Government, Department of School Education, J&K and J&K Board of School Education, on receipt of such applications, should decide either himself or itself or by constituting a committee, comprising of senior officers of the School Education Department or J&K Board of School Education, Revenue Department or any other departments as may be thought appropriate by him or it, and get such applications decided within four months.”

It said that while doing so, the petitioners should also be heard.

With regard to the writ petitions and cases, where Kahcharie, State, and Shamilat land is not involved, the court said, writ petitioners therein could also approach the Principal Secretary to Government, Department of School Education, J&K and J&K Board of School Education with their request or plight within four weeks from today.

“On receipt of such applications, he or it should either himself or itself decide or get such applications decided through the committee, to be constituted by him or it within a period of four months and while doing so, the petitioners should also be heard,” the court said. “Till then, the petitioners should be permitted to run the schools provided they are able to do so having regard to change of circumstances during pendency of instant matter as the students studying in those schools have been shifted to other schools.”