It is a rare case where the Army invoked protection under Armed Forces (J&K) Special Powers Act to challenge its prosecution for cutting trees. The court, however, has rejected the plea.
Rejecting the Union Government’s plea that the armed forces are protected under Armed Forces Special Powers Act (AFSPA) and no suit can be initiated against them even for cutting trees, a court in Kashmir has said this kind of dispute nowhere comes under the ambit of the AF(JK)SPA.
After a resident of Bandipora filed a suit seeking compensation for the felling of trees by the Army on his land that the force had taken over in 2001, the Union government relied on Armed Forces Special Powers Act to refuse compensation.
Advocate Karnail Singh representing the Union government argued that as per Section 7 of the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, no prosecution, suit or other legal proceedings can be initiated against the Army till proper sanction from the Central government is obtained. However, Singh didn’t dispute that the land is in possession of the Army for which it is paying the rent regularly to the land owner.
While advocate Shafeeq Ahmad presenting plaintiff Ghulam Rasool Wani argued that he was claiming compensation for only trees and it doesn’t come under any section of the AF(J&K)SPA. He argued that under Section 4 of the AF(J&K)SPA the armed forces have protection in the exercise of powers in the disturbed areas declared under the act.
Principal District Judge Amit Sharma said the suit nowhere comes under the ambit of the special powers granted by AF(J&K)SPA. “In the present suit, the dispute is between the plaintiff and the defendants are purely civil in nature where the defendant obtained the property of plaintiff on rent basis and documents of handing over and taking over possession was also executed between them,” the court said, adding documents of land around 16 kanals which is with Army since 2001 have also figures of number of trees. The land owner has sought compensation with regard to the trees that have been cut by the Army after taking over possession of the land. The court said the Army as tenants were not supposed to cut down any existing trees over the land rented out to them in 2008. “Hence there was no need for the plaintiff to obtain sanction from the government filing suit in such a type of controversy,” the court said. The court decided the matter in favour of plaintiff.
Wani of Chuntimullah Bandipora filed a suit in 2018 before district judge Baramulla stating his land is under the possession of the Army since 2001 and the Army has cut 64 trees including 40 poplar trees, 15 willow trees and walnut trees.
While the horticulture department of the J&K government assessed the losses caused due to the cutting of trees to Rs 5,20,922 — Rs 3,20,922 for six walnut trees and Rs 2 lakh for others, including poplars and willow trees, Wani states that he has suffered a lot as he was not given compensation and has lost hard-earned property. He also stated that he was not allowed to take away the produce of the trees.
