Army Claims Protection Under AFSPA For ‘Cutting Trees’ On Rented Property, Court Says No Requirement Of Sanction As Dispute Purely Civil In Nature

In a dispute related to the felling of trees on a land taken over by the Army on rent from a civilian, a court in Kashmir’s Bandipora district has rejected the union government’s argument that the landowner is first required to seek sanction under The Armed Forces (Jammu And Kashmir) Special Powers Act (AFSPA) before filing the recovery suit.

Principal District Judge Amit Sharma ruled that the status of defendants, which include Union of India and the Army, is not more than a tenant and they were “not supposed to make any improvement or cut down any trees existing over the land which was rented out” in 2008.

“Therefore this kind of dispute nowhere covers under the definition clause a to e of Section (4) of (Armed Forces Special Act). Hence there is no need for the plaintiff to obtain sanction from the central government before filing suit in such types of controversy,” said the court.

Advocate Karnail Singh, representing the Union of India, had argued that suit is hit by Order 7 Rule 11 of the CPC as well as for want of cause of action, “purely on this ground that as per Section 7 of The Armed Forces (Jammu and Kashmir) Special Protection Act, 1990 no prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.”

While it was not disputed that the land continues to remain in possession of the Army, the Union of India argued that when possession was taken over by the Army, it was “rooted” through the district administration and for which a set procedure has been formulated for handing over and taking over.

Advocate Shafeeq Ahmad, representing the plaintiff Ghulam Rasool Wani, argued that he is only claiming compensation with regard to the trees and such nature of dispute is not covered under the category of the powers defined under Section 4 of AFSPA.

Judge Sharma said that from the five clauses contained under Section 4 (a to e) of the AFSPA, the controversy demonstrated in the suit can’t be said to be covered within the ambit of Special Powers provided to the Armed forces under this Act.

“Meaning thereby in the present suit the dispute between the plaintiff and the defendants are purely civil in nature where the defendant obtained the property of the plaintiff on rent basis and the documents of handing over and taking over possession was also executed between them on 02/01/2008,” the court said.

The court added that it is only regarding the trees the plaintiff is claiming “compensation from Army Authorities that these trees were cut down by the Army Authorities without the permission and consent of the land owners and due to this the cause of action accrued to the plaintiff to file the present suit.”

The matter is now listed on July 04 for further proceedings

Dispute In Brief

Wani in 2018 had filed the suit for recovery Rs. 6,75,722 with interest for felling of six walnut trees, forty popular trees, fifteen Willow trees and three Brimji trees.

There were a total of 85 trees on the land at the time of taking possession by the Rashtriya Rifles in 2001, out of which 64 trees have been cut down by them since taking over of possession, he alleged.

“The compensation of six walnut trees has been assessed by the horticulture department as three lac twenty thousand nine hundred twenty two (Rs 3,20,922/=). The compensation of (the) rest of the cut down trees is assessed approximately as rupees two lac (Rs. 2,00,000/=),” he said in the suit.

Wani said he has suffered a lot because he has neither been compensated nor has any other relief been given to him for the trees. He further said that he is also being denied the fruit of the trees standing over his land and even for that, he is not being compensated. The Horticulture department has assessed the compensation in respect of the produce as Rs 1,54,800 for the years 2001 to 2009, according to the suit.

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