Army invokes AFSPA to challenge prosecution for tree cutting; court rejects plea
Samaan Lateef
Srinagar, June 12
In a first, the Indian Army has invoked the protection under Armed Forces Special Powers Act (AFSPA) to challenge its prosecution in a case involving the cutting of trees.
However, the court has dismissed the Army’s plea, stating that the dispute over tree cutting does not fall within the ambit of the AFSPA.
The legal battle began when Bandipora resident Ghulam Rasool Wani filed a suit seeking compensation for trees that were cut by the Army on his land, which had been taken over by the force in 2001.
The Union government, relying on the AFSPA, had refused to provide compensation, arguing that no suit can be initiated against the Army without proper sanction from the Central government.
Advocate Karnail Singh, representing the Union government, argued that Section 7 of the AFSPA, prohibits the initiation of any prosecution, suit, or legal proceeding against the Army without prior sanction from the Central government. However, Singh did not dispute the fact that the Army is in possession of the land and regularly pays rent to the landowner.
Advocate Shafeeq Ahmad, representing Wani, argued that the compensation claim pertains solely to the trees and does not fall under any section of the AFSPA. He contended that the armed forces are protected under Section 4 of the AFSPA only for the exercise of powers in the declared disturbed areas.
In a decisive verdict, Principal District Judge Amit Sharma ruled that the suit does not come under the special powers granted by the AFSPA. The court stated that the dispute is purely civil in nature, as the Army obtained the property on a rent basis and documents of possession were executed between the parties.
“According to view point of this court the status of the defendant in the present set of controversy is not more than the “Tenant” and as a tenant they are not supposed to make any improvement or cut down any trees existing over the land which was rented out to the Army Authorities with effect from 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,” reads the court order.
The court noted that the documents of the land, which has been in the possession of the Army since 2001, also contain information about the number of trees. It further emphasised that as tenants, the Army was not authorized to cut down any existing trees on the rented land.
Therefore, the plaintiff did not need to obtain government sanction to file the suit.
The court ruled in favour of the plaintiff, stating that the suit is maintainable. The next hearing in the case is scheduled for July 4, 2023.
AFSPA has been predominantly used to prevent prosecution in cases of human rights violations, such as murder and rape, in civilian courts.
