Srinagar: The High Court of J&K and Ladakh on Thursday said that if private schools are permitted to operate on Kahcharie land, it will encourage unscrupulous elements to grab the land meant for community purposes.
Disposing of 48 writ petitions by various private schools, the acting Chief justice Tashi Rabsatan said that 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/misuse” of such instances/examples to grab common land.
The court directed that where the schools are being run on Kahcharie/State/Shamilat, etc. land, the petitioners (proprietors) can either acquire the proprietary land and/or approach the Principal Secretary to Government, Department of School Education /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/Shamilat, etc. land, as may be available under, and in terms of the Land Revenue Act or any other applicable law(s).
“All these requests/applications shall be made by petitioners within four weeks from today,” the court said, adding, “Principal Secretary to Government, Department of School Education, U.T. of J&K/J&K Board of School Education, on receipt of such application(s), shall decide the same either himself/itself or by constituting a committee, comprising of senior officers of the School Education Department/J&K Board of School Education, Revenue Department or any other department(s) as may be thought appropriate by him/it, and get such applications decided within four months.”
While doing so, the petitioner(s) shall also be heard, the court said.
With regard to the writ petitions/cases, where Kahcharie/State/Shamilat land etc. is not involved, the court said, they (writ petitioners therein) can also approach Principal Secretary to Government, Department of School Education, U.T. of J&K/J&K Board of School Education, with their request/plight within four weeks from today.
“On receipt of such application(s), he/it shall either himself/itself decide or get such application(s) decided through the Committee, to be constituted by him/it, within a period of four months and while doing so, petitioner(s) shall also be heard,” the court said, adding, “Till then petitioner(s) be permitted to run the school(s) 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.”
The bench said that such land is meant for a particular purpose, “that is, for common purpose, which cannot be permitted to be deviated.”
Elaborating whether the existence of the school infrastructure on Kahcharie land is relevant for the purposes of carrying out the educational programme and activities, the bench said: “….a private school in any manner cannot be treated and deemed as a government with connected matters school”.
Referring to the directions of the Supreme in a similarly situated case, the bench said that the Kahcharie land is meant for a particular purpose, that is, for common purpose, which cannot be permitted to be deviated.
“It is true that regularization in exceptional cases might have been given but that does relate to landless labourers or members of SC/ST or where there is already a school, dispensary or other public utility on the land,” the court said, adding, “With respect to the petitioner-school, it cannot be said to be a public/government school but a private school, and, therefore, does not come and fall within the ambit of exceptional cases.”
The court also noted that all religions say that education is a must for human beings. “If an individual wants to do a good for human being, let him/her establish a school on his/her proprietary land or on a self acquired land and provide free education,” the court said, adding, “It is startling that the land meant for grazing and/or common purpose is being utilized by certain individuals for personal/private purpose. Such acts should be dealt with iron hands.”
On the question whether the recognition and affiliation of the private unaided schools for last several decades has the effect of the tacit consent of the government authorizing establishment of these schools on Kahcharie land to be lawful, the court said: “Answer to this question is that establishment of private schools on Kachcharie/common land ought not to have been permitted, much less allowed to continue by the then authorities/functionaries/departments and, therefore, such practice should be arrested by the government.”
The court also directed the government that grant of affiliation or recognition to private schools or schools running, operating and functioning on Kahcharie land, should be stopped.
“The State holds landed property in trust and for the ultimate benefit of its citizens in general; thus, the State/Government is required to save, protect and preserve the Kahcharie/State land for the purpose for which it is meant for,” the court said.
It added “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 was expected of respondents (government authorities) that they would have borne this salutary principle in mind while bestowing any benefit upon an individual school”.
A number of schools had filed petitions before the court, claiming that they find themselves in a quandary in the context of the land site housing their respective school premises which in most of the case is Shamilat or Khachari land.
They stated that the authorities concerned, including the Government itself, all along in the course of time had been well aware about the site status of the schools and still the affiliations and recognitions came to be granted and revised from time to time.
However, by virtue of S.O 177 of 2022, they said, the imminent fall out of the operation of S.O 177/2022 would mean that their existing recognition for class 9th, 10th, 11th and 12th was going to be held up, thereby exposing students’ career to peril. They demanded declaring the S.O as ultra vires of the constitution.
They said that they will not be able to earn issuance of registration return forms (RRFs) from the State Board of School Education for lack of renewal of the permission.
The court also held that if the petitioner’s contention is accepted that the amendment has prospective effect, it would amount to opening a floodgate and giving freehand to unscrupulous elements to grab Kahcharie/State land and show that Kahcharie/common land is in their possession since time immemorial.
“Such a practice and/or notion is unacceptable. The Government of J&K should not be loath and inert in implementation of the laws.”
