‘No private schools on government land’, J&K High Court grants interim relief to 150 private schools challenging mandatory land laws

Upholding the validity of impugned SO 177 amending the Jammu and Kashmir School Education Rules, 2010 Acting Chief Judge Tashi Rabstan stressed that these provisions are a necessary measure to ensure compliance with land use regulations.

Background

The petitioning schools have challenged the legislation, arguing that the latest changes, which impose strict requirements for land-use documentation, threaten the continued operation of institutions that have been operating on Kacharye (common) land for decades.

The petitioners sought to declare the notification unconstitutional, arguing that the provisions were arbitrary and irrational and failed to take into account the unique circumstances in which the schools were established.

The petitioners also argued that the schools were protected by the decision of the Supreme Court in the case Jagpal Singh v. State of Punjab and others because the local community had given consent for the school to use the land for educational purposes, which they argued was in the public interest.

The Supreme Court in Jagpal Singh directed all state governments to prepare plans to evict illegal or unauthorized occupiers from Gram Sabha, Gram Panchayat or Shamilat lands and restore such lands to the common use of villagers.

The Supreme Court also said regularisation should be allowed only in exceptional cases, such as when landless labourers or members of Scheduled Castes/Tribes are involved, or when a public utility such as a school or a clinic is already present in the area.

Relying on the Supreme Court judgment, the applicants further submitted that the amendment declaring illegal the existence of a private, unfunded school in Kacharye (state) land was irrational and arbitrary.

Representing the government, Senior Additional Advocate General Mohsin Qadiriargued that these changes were necessary to prevent inappropriate use of public or community lands by private entities.

The government maintained that the requirement to obtain a permit for the use of public land from the Revenue Department was in line with Supreme Court guidelines aimed at ensuring that public lands were protected for their intended purpose.

The government also stressed that the regulations were necessary to promote transparency and prevent the emergence of new private schools operating in unauthorized areas, which could lead to legal complications and affect the quality of education.

Private schools are not covered by the Supreme Court ruling Jagpal Singh

Rejecting the applicant’s one-sided interpretation of the Supreme Court judgment, Judge Rabstan clearly stated that Jagpal Singh The judgment condemns the use of state land for any purpose other than its common purpose and since the petitioner schools were private institutions, the petition does not fall within the ambit of exceptional cases enumerated in the Supreme Court judgment.

Commenting on the applicant’s contention that the amendment constituted an unjustified restriction and that the status of the land should be irrelevant to the educational activities carried out on it, the court emphasised that the Kahcharie land, which was zoned for community purposes, could not be zoned for private use, even for educational activities.

The regulations cannot be applied retroactively

The written complaint also raised the issue of whether the changes introduced were prospective in nature and therefore could not be applied to existing private schools that did not receive funding and had been operating for decades in the Kacharya lands.

Judge Rabstan rejected the argument that laws should not be retroactive. He explained that the government has the right to pass laws retroactively, especially when they are intended to correct past oversights.

The court noted, “Accepting the allegations of the petitioners would mean opening the floodgates and giving a free hand to dishonest elements to take over Kahcharia or state land.” The court stressed that preserving the integrity of common lands in accordance with their intended use is crucial and allowing private entities to exploit such lands would set a dangerous precedent.

Building private schools on common land should never be allowed

Considering the argument that the long-standing recognition and affiliation of private, unfunded schools operating in Kacharya land implied tacit consent of the government, making their establishment lawful, the court categorically rejected the notion, holding that establishment of private schools in Kacharya or common land should never have been permitted.

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

The court referred to the decision of the Supreme Court in the case Akhil Bharatiya Upbhokta Congress v. State of Madhya Pradeshwhich ruled against arbitrary land distribution and stressed the need for transparent and fair processes, underlining the principle that state resources cannot be allocated on the basis of favouritism or without fair and open procedures.

The court granted the plaintiffs temporary relief, while assuring them that the government regulations would ultimately be enforced. The court allowed the schools to continue operating in their current buildings temporarily, giving them time to adjust to the new regulations.

The judges ruled that private schools must build new facilities on their own land within six months, with a one-year extension possible, and then allowed land swaps under strict conditions to reclaim government land for the community.

The court also ordered all private schools to comply with new land use regulations under SO 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 vs. Union Territory of J&K and Others

Citation: 2024 LiveLaw (JKL) 228

Mr. Z.A.Shah, Senior Advocate along with Mr. Asif Feroz Bhat, Advocate represented the applicant, Mr. Mohsin Qadiri, Senior Solicitor General and Ms. Maha Majeed, Assisting Advocate represented UT of J&K

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