A J&K court has rejected the Army's contention that it cannot be prosecuted without permission from the Centre for cutting fruit trees on the premises it has taken on rent. The Army had sought protection under the Armed Forces Special Powers Act (AFSPA). Principal Session Judge, Bandipora, Amit Sharma ruled that there is “no need for the plaintiff to obtain sanction from the Central government before filing a suit in such type of controversy”. In his petition, Ghulam Rasool Wani, a resident of Chuntimulla village in Bandipora, has said that his premises was taken on rent by the Army's 14 Rashtriya Rifles (RR) in 2001. At the time of possession, there were 85 trees on the premises, including some fruit bearing ones. According to the petition, the Army cut 64 trees, including six walnut trees , between 2001 and 2009. Wani said the Army also consumed the timber and wood of the cut trees. 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. The petitioner also said that the Army did not allow him to harvest the fruits of the other trees and the agriculture department estimated the losses to the tune of Rs 1,54,800 for eight years — from 2001 to 2009 — making it a total loss of Rs 6,75,722. The petitioner said the Army refused to pay the compensation assessed by government departments and forced him to approach the court in 2018. In his petition, he has sought a compensation of Rs 6,75,722, along with interest on existing rates. When the case came up for hearing, defence counsel Karnail Singh argued that no legal proceeding can be instituted against the Army without sanction from the Central government, citing Section 7 of AFSPA, which states: “No prosecution suit or other legal proceedings 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.” The petitioner's counsel, Shafiq Ahmad Bhat, however, challenged the Army contention calling it a selective reading of the Act. “I argued before the learned judge discussing each of the eight sections of AFSPA,” he told The Indian Express. “The learned judge was convinced by our arguments. Rejecting the Army contention, the judge has listed the case for hearing on July 4.” In his judgment, judge Amit Sharma observed that the controversy over the cutting of trees doesn't come under the ambit of AFSPA. “.it is proper to highlight the relevant Section 4 of AFSPA on the strength of which protection has been provided to the Armed Forces regarding the exercise of powers in disturbed areas. From the five clauses contained under Section 4 (a to e), the present controversy as demonstrated in the main suit is nowhere covered within the ambit of Special Powers provided to the Armed forces under this Act. Thereby, in the present suit the disputes between the plaintiff and the defendant are purely civil in nature.” The court ruled that the Army is no more than a tenant in this case. “According to view point of this court,. the status of the defendant in the present 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 2001,” the order reads. “There is no need for the plaintiff to obtain sanction from the Central government before filing suit in such types of controversy,” the court said.
