"No Private Schools On State Land", J&K HC Grants Temporary Relief To 150 Private Schools Challenging Mandatory Land Regulations.

Upholding the validity of  impugned S.O. 177, which amended the Jammu and Kashmir School Education Rules, 2010 Acting Chief Justice Tashi Rabstan emphasised that the regulations were a necessary measure to ensure compliance with land use laws.

Background

Petitioner schools had challenged these regulations arguing that these latest amendments, which impose strict requirements for land use documentation, threaten the continued operation of long-established institutions that have been functioning on Kahcharie (common) land for decades.

The petitioners sought to have the notification declared unconstitutional, asserting that the regulations were arbitrary, and irrational, and failed to consider the unique circumstances under which these schools were established.

The petitioners had also contended that the schools were protected by the decision delivered by the Supreme Court in Jagpal Singh v. State of Punjab and others since the local community had permitted the school to use the land for educational purposes, which they claimed was in the public interest.

The Supreme Court in Jagpal Singh had directed all state governments to prepare schemes for the eviction of illegal or unauthorized occupants of Gram Sabha, Gram Panchayat, or Shamilat land and to restore such land for the common use of villagers.

The Supreme Court had also stated that Regularization was only to be permitted in exceptional cases, such as where landless labourers or members of Scheduled Castes/Tribes were involved, or where there was already a public utility like a school or dispensary on the land.

Drawing strength from the Apex Court judgment the petitioners further contended that the amendment making the existence of a private unaided school on Kahcharie (state) land illegal was irrational and arbitrary.

Representing the government, Senior Additional Advocate General, Mohsin Qadiri, argued that the amendments were essential to prevent the misuse of public or communal land by private entities.

The government maintained that the requirement for an NOC from the Revenue Department was in line with the Supreme Court's directives to ensure that public land is preserved for its intended purposes.

The government also emphasized that these regulations were necessary to promote transparency and prevent the proliferation of private schools operating on unauthorized land, which could lead to legal complications and affect the quality of education.

Private schools do not fall under ambit of Apex Court judgement in Jagpal Singh

Rejecting the petitioner's lopsided interpretation of the Apex Court's judgment Justice Rabstan made it clear that the Jagpal Singh judgment deprecates the use of state land for any purpose other than its intended common use, and since the petitioner schools were private institutions, the petition does not fall within the ambit of the exceptional cases mentioned in the Supreme Court's ruling.

Commenting on the petitioner's contention that the amendment was an unreasonable restriction and that the status of the land should not be relevant to the educational activities conducted on it, the court emphasised that the use of Kahcharie land, which is designated for communal purposes, cannot be repurposed for private use, even for educational activities.

Regulations cannot apply retrospectively

Another question raised in the writ petition was whether the amendments carried out were prospective in nature, and therefore inapplicable to pre-existing private unaided schools that had been established and operating for decades on Kahcharie land

Justice Rabstan rejected the argument that the regulations should not apply retrospectively. He clarified that the government has the authority to enact laws with retrospective effect, particularly when aimed at correcting past oversights.

The court noted, "Accepting the petitioners' contention would amount to opening a floodgate and giving a free hand to unscrupulous elements to grab Kahcharie or State land." The court emphasized that maintaining the integrity of common land for its intended purpose is crucial, and allowing private entities to exploit such land would set a dangerous precedent.

Construction of private schools on common land should never have been permitted

Dealing with the argument that the long-standing recognition and affiliation of private unaided schools operating on Kahcharie land implied the government's tacit consent, making their establishment lawful, the court firmly rejected this notion, stating that the establishment of private schools on Kahcharie or common land should never have been permitted in the first place.

The court emphasized that such practices must be stopped by the government to protect and preserve public land for its intended communal purposes. It highlighted that the state holds land in trust for the benefit of all citizens, and no individual or institution should be allowed to exploit public land for personal gain at the expense of the broader community.

The court referenced the Supreme Court's decision in Akhil Bharatiya Upbhokta Congress v. State of Madhya Pradesh, which ruled against arbitrary land allotments and emphasized the need for transparent and equitable processes, underscoring the principle that state resources cannot be allocated based on favouritism or without a fair and open procedure.

The Court thus provided temporary relief to the petitioners while ensuring that the government's regulations were ultimately enforced the court allowed the schools to continue operating on their current premises temporarily, giving them time to transition to compliance with the new rules.

Observing that the Private schools must build new facilities on their own land within six months, with a possible one-year extension the bench allowed Land swaps under strict conditions to reclaim government land for community use.

The court also mandated that all private schools must comply with the new land use regulations under S.O. 177, including obtaining the necessary No-Objection Certificate (NOC) from the Revenue Department and fulfilling all legal requirements related to land ownership and use.

Case Title: Kirmania Model High School, Batwina, Ganderbal Versus Union Territory of J&K and others

Citation: 2024 LiveLaw (JKL) 228

Mr. Z.A.Shah, Senior Advocate with Mr Asif Feroz Bhat, Advocate appeared for the for petitioner, Mr Mohsin Qadiri, Sr.AAG with Ms. Maha Majeed, assisting counsel represented UT of J&K 

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