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

The Jammu and Kashmir and Ladakh High Court on Thursday, provided interim relief to over 150 private schools in the region. These schools had challenged a government order, S.O. 177 of 2022, which mandated obtaining a No Objection Certificate (NOC) from the Revenue Department to verify the legal status of the land used for educational purposes.While granting a narrow six month window to these schools to relocate, the court observed that the existence of a private school infrastructure on Kahcharie land if permitted to operate, run, and continue, would only encourage unscrupulous elements to make “use and misuse” of such instances and examples to grab common land.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.BackgroundPetitioner 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 SinghRejecting 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 retrospectivelyAnother 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 landJustice 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 permittedDealing with the argument that the long-standing recognition and affiliation of...

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

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