A single bench of Justice Javed Iqbal Wani has denied the benefit of exception carved out by the Hon’ble Apex Court in case titled as Jagpal Singh & Ors. Vs. State of Punjab & Ors to a private school established on Kahcharai land for the reason that such land use was never regularised by the government and that the petitioner had sought such regularisation from the government. The petitioner was seeking extension of recognition of school while challenging SO 177 issued by the government.
The petitioners has thrown a challenge to SO 177 dated 15.04.2022 issued by the government in exercise of powers conferred by Section 29 of the J&K School Education Act, 2002 which makes land use certificate a prerequisite for extension of recognition by the government.
The Petitioner school came to be established on kahcharai land and upon its establishment, necessary recognition thereto also came to be accorded by the Education Department from time to time. But after issuance of the SO 177 supra, the respondents did not extend the requisite recognition to the school. The petitioner sought the benefit of exception carved out by the Hon’ble Apex Court in case titled as Jagpal Singh & Ors. Vs. State of Punjab & Ors dealing with the case of common land ( Gram Sabha/ Gram Panchayat/ Poramboke/Shamlat) occupied unauthorizedly.
The court taking note of Para 22 of the said judgement which reads as:
“ Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/Promboke/ Shamlat land and these must be restored to the Gram Sabha/ Gram Panchayat for the common use of villages of the village. For this purpose the Chief Secretaries of all State Governments/ Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Casts/ Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land”.
The court taking note of the supreme judgment observed that Though the judgment supra provide for regularization of the occupation of the common land in exceptional cases including in cases where lease has been granted under some government notification to landless labourers or members of scheduled cast/scheduled tribes or where there is already a school, dispensary or other public utility on the land, yet it has nowhere being stated by the petitioner that regularisation of the land in the question has been sought by it and therefore, in absence of the regularization of the land in question, provided if the said regularization/provision is applicable to the case of the petitioner, the petitioner cannot be said to have any locus to maintain the instant petition. Accordingly the petition was dismissed.
