The use of Kahcharie/Shamilat land for private schools is illegal, and amendments to education rules are prospective, requiring schools to operate on proprietary land.

JUDGMENT :

1. This batch of writ petitions (which are forty-eight in number) urges to declare Notification/S.O. 177 dated 15th April 2022 as ultra vires to the Constitution. Ancillary relief(s) are also being sought in these petitions. These petitions are taken one by one.

WP(C) no.3250/2023

Kirmania Model High School Batwina v. UT of J&K and others

Mr. Z.A.Shah, Senior Advocate with Mr Asif Feroz Bhat, Advocate for petitioner

Mr Mohsin Qadiri, Sr.AAG with Ms. Maha Majeed, assisting counsel.

2. Let me first take up the writ petition, WP(C) no.3250/2023, which is titled as Kirmania Model High School Batwina, Ganderbal v. Union Territory of J&K and others, in which the following reliefs are prayed to be granted:

(a) That S.O. 177 dated 15.04.2022 be declared as ultra vires to the Constitution;

(b) It be declared that Local Village Inhabitants have proprietary rights on Kahcharie/Shamilat Deh etc. land as the use of a portion of Kahcharie lands for public purpose of establishing a school does not violate any law and the petitioner schools are entitled to continue in the present status.

(c) It be also held that status of the land, on which the school is located, cannot be made basis of recognition or affiliation by the Government and/or by the State Board of School Education.

(d) That by a writ of mandamus Government be directed to accord recognition to the petitioner school for 9th, 10th, 11th and 12th classes and the State Board of School Education be directed to grant affiliation to the petitioner schools for a period of 05 years from the date of expiry of the last affiliation in the same manner as has been done to other schools in terms of order no.03-Gen of 2023 dated 06.01.2023.

(e) That by a writ of mandamus respondents be directed to admit the schools to the privileges and facilities of the State Board of School Education and be further directed to release/provide Registration Return (RR) forms to the petitioner schools and to allow online access to the petitioner schools to approach the State Board of School Education/Government/Authorities of Directorate of School Education and to accept fee etc. and to complete all the formalities as may be required to enable the students of 9th, 10th, 11th and 12th classes to take board examination as may be prescribed and as and when these are held.

2.1. Reply has been filed by the respondents. Their preliminary objection is about maintainability of the writ petition. According to them, policy decision of the Government is not open to challenge in a writ petition. As regards facts, it is stated by respondents that J&K School Education Act, enacted in the year 2002, provide for derecognition of school(s) under Section 16 thereof. J&K School Education Rules were issued in the year 2010, so as to implement various provisions of the Act of 2002. About impugned S.O. 177 of 2022, it is contended by respondents that in exercise of powers conferred by Section 29 of the Act of 2002, certain amendments have been made in the Rules of 2010. It is also contended that action taken by respondents is within their ambit of the Act of 2002 and amendments carried in the Rules of 2010 are not illegal. The respondents also contend that the intend of School Education Department is only to get the land record/document verified by concerned Revenue authorities in order to check that private schools are having valid land documents and are legally entitled to run such private school and the buildings/lands are free from all legal encumbrances. It is also submission of respondents that amendments carried in terms of impugned notification is to help in running academic sessions of the students in a smooth way and in case of Revenue authorities taking over the possession of the State land from illegal occupants, the private schools shall not be disturbed and their land record shall be verified by recognition/affiliation authorities for the larger interest of the students studying in these private school/institutions. Besides