Jammu and Kashmir High Court dismisses plea to extend recognition to school on Kahcharai Land

The High Court of Jammu and Kashmir and Ladakh recently dismissed a petition seeking the extension of recognition to Ahmadiyya Public School (APS) which had sought to continue functioning on Kahcharai land (grazing land) in Kashmir's Shopian area [Ahmadiyya Public School vs UT of JK & Ors.]..Justice Javed Iqbal Wani noted that since the school had not applied for regularisation of land use, it did not have any legally enforceable right to seek the extension of recognition to continue functioning on the said grazing land..The Court explained that in the case of Jagpal Singh & Ors v. State of Punjab & Ors, the Supreme Court had called for the eviction of encroachers in illegal or irregular possession of land meant for common use, regardless of how long they have been residing on such land. At the time, the top court had added that it would only be exceptional cases that any exemption should be given in such matters. Such exceptional cases included when such land is given to landless labourers or for the benefit of scheduled castes or scheduled tribes, or when there is already a school or public utility on the said land. However, even when it comes to such exceptional cases, an exemption can be granted only when the land use is regularised, the High Court observed. .However, the Court found that in this case, the school never applied for any regularisation of their use of the Kahcharai land. Therefore, the Court opined that the school could not now stake a claim on it."In absence of the regularization of the land in question ... the petitioner cannot be said to have any right enforceable in law qua the land in question unless the same is regularized in its favour in accordance with the law and if permissible," the Court's April 15 order stated..By way of background, APS had been granted recognition by way of a government order in 1994 to operate on the Kahcharai land. The school initially had students from nursery to class 5 levels, but eventually graded up and had students up to class 8 without any government objection. The recognition accorded to the school was extended on various occasions by the Jammu and Kashmir government, including in 2000, 2003, 2007, 2010, 2015 and 2018. In 2022, the Jammu and Kashmir High Court issued Statutory Order No. 177 (SO 177) under Section 29 of the Jammu and Kashmir School Education Act, 2002, which amended the Jammu and Kashmir School Education Rules, 2010. The amended rules required a school seeking recognition to also submit a no-objection certificate (NOC) regarding land use. When APS applied for an extension of recognition under the amended rules, it came to be known that this NOC was not granted since the land on which the school was functioning was Kahcharai land. This prompted the school to approach the High Court for relief. In its plea, the school also challenged SO 177. APS argued that the denial of an extension of recognition would force the school to shut down and adversely affect students. .The Court, however, dismissed the plea after noting that the land being used by the school had not been regularised in its favour, nor had the school made any application for such regularisation. ."Admittedly the petitioner school has been established on the Kahcharai land being a common land covered by the judgment of the Apex Court that provides for regularization of the occupation of the common land in exceptional cases. Therefore, in absence of the regularization of the land in question, the petitioner cannot be said to have any locus to maintain the instant petition on any grounds whatsoever and the petitioner cannot be said to have any right enforceable in law qua the land in question unless the same is regularized," the High Court said..Advocate Tasaduk Hussain Reshi appeared for the petitioner school (APS)..[Read Order]