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29 Oct 2017
Writer: Kreshma Fakhri

Courts rule, but land dispute goes back to AG

An investigation into the reopening of a case of land grabbing that was declared null and void by three courts.
After a government delegation proved that 60 jeribs of land located south west of Kabul was usurped from the defence ministry, the palace ordered the Attorney General Office (AGO) to investigate all the concerned documents.
The land grabbing was confirmed after three courts had declared the charge wrong in 2009. The case is called the claim of presidency of State Cases on usurpation of 896 jeribs (1 hectare acre is equal to 5 jeribs) of government land including 60 jeribs of the defence ministry.
According to the reasoning of the three courts, the legal documents that Mohammad Nabi Khalili (the owner of Omed Sabz Township) has given them are more authentic than the cadaster maps that the presidency of State Cases relies on. In 2011, the high council of the Supreme Court also rejected the review plea by the palace and supported the decision made by the three courts in favour of Khalili.
But in 2016, the delegation assigned by President Ashraf Ghani had reported to the high council of law enforcement that an area of 60 jeribs was indeed illegally taken over by the owner of Omed Sabz township. Shah Husain Murtazawi, the acting head of press office of palace, says the Afghan president had ordered the AGO to reinvestigate the documents of Omed Sabz Township in coordination with the State Administration Office. He also confirmed that the issue of usurpation of 60 jeribs as stated in the report of the delegation had been assigned last year by the palace. Murtazawi clearly told that Khalili was ready to pay the government the price of the usurped land at the current rate.
However, the Ministry of Defence has not agreed to Khalili's proposed price of 30,000 Afs (440 USD) per jerib. Based on the information presented by the Ministry of Urban Development and Housing, the township of Omed Sabz has occupied an area of 1,478 jeribs that is officially approved by it. Ministry spokesperson Nilofar Langar says the township of Omed Sabz was approved by the ministry in 2004 as spread over 1,000 jeribs. According to her, an extension was added in 2008 that included 382 jeribs and in 2012 an amended plan for a township spread over 1,478 jeribs was approved.
The spokesperson says the process of seeking approval for residential townships involves first getting permission from the Land Authority and other offices. The authorities of Omed Sabz had both processed the documents and got the map of the township approved by the ministry.
Information provided by the Ministry of Urban Development and Housing confirmed the approved documents include the legal deed for the township, site plan, cadaster mapping and the agreement signed by the ministries of agriculture, mines and petroleum, the Environment Protection Agency, municipality and governor's office.
According to Langar, her ministry gave approval relying on documents that were shown and not after scrutiny of the contents of the documents.

In Court
The presidency of State Cases as well as the Land Authority had both claimed that half the Omed Sabz township was on government land based on cadaster surveys. Following a report by Killid, the presidency of State Cases identified 896 jeribs of township was usurped – the cadaster survey, which included interviewing alleged owners, shows 949 jeribs are the property of the government. The letter no 5111/65, dated 9 April 2017, of the Land Authority that was sent to the palace states, "Considering the map of cadaster as well as the list of probable owners, an area of 949 jeribs of seventh grade land is recorded under name of government so the City Clearance Delegation has referred documents based on article 23 of the law of land affairs to the concerned court after it (the delegation) has written its view on it. But the court has called the cadaster map a probable map and declared it invalid against the legal documents of Mohammad Nabi Khalili."
The letter of the Land Authority which has been signed by the head, Jawad Paikar, too states, "The primary court of Char Asiab (one of the districts of Kabul province) has written in its letter number 357 issued in year 2007 that map of cadaster is a probable map and has no validity against the legal and lawful documents of Mohammad Nabi Khalili and on the other hand no documents that can annualize the documents of Khalili exist."
The presidency of State Cases also says that it has tried a lot to prove the claim but the three courts as well as the high council of the Supreme Court decided in favour of a "real person" (Khalili).
Petitioners claim
Letter number 4086/2246, dated 23 August 2017, from the Ministry of Justice that has been sent in response to questions from Killid states, "The residents of villages such as Bahadoor, Bakhtiar, Yakhchak, Delawer and others located in sixth city district have submitted their petition to presidency of rights that their pastures and common lands have been usurped by Mohammad Nabi Khalili, a township has been established and plots are being sold." The petition was eventually forwarded to the presidency of State Cases and the court in its judicial state number 331, dated 28 May 2005, ordered not processing the case. As the representative of State Cases was not satisfied the documents were sent to the Appeal Court, which rejected it through judicial state number 22, dated 1 August 2006.
Later on the documents were sent to court of 3rd district of Kabul where again the claim of the representative of State Cases on usurpation of 896.51 jeribs that include piece number 259 of cadaster map of 536.7 jeribs, number 296 for 349.25 jeribs and number 1811 for 11.39 jeribs were considered the legal deeds of Mohammad Nabi Khalili.
Final appeal
In 2009, judicial state number 9, dated 16 May, of the Civil and Public Rights section of Kabul court appeal as well as judicial state number 683, dated 11 October, of Civil and Public Rights of Supreme Court confirmed the decision of the primary court in favour of a "real person". The letter that includes the report of performances of presidency of State Cases regarding the Omed Sabz Township located on the foot of the Koh Kroogh mountain and part of the 6th District of Kabul city, further states that the presidency of State Case has again sought clarification through letter number 5700/5692 dated 14 Nov 2009 from departments such as Rights in the Kabul governor's office. The Ministry of Defence, Kabul governor's office, municipality, properties office of the Kabul agriculture department, presidency of cadaster, police zone commandment number 101, the managing offices of 6th and 13th city police districts and the Ministry of Rural Rehabilitation and Development were assigned to review the court order and submit the documents and reasons but authorities in the Ministry of Justice say that none of the offices submitted documents or reasons for not complying.
The letter that has been signed by Khuja Ahmadulah Sidiqi, acting head of presidency of State Cases states, "Eventually, considering the pages of dossier, there have been reasons including the location of the township being on stadium, Kabul ring road and green areas of Kabul city belt, that the cadaster pieces belong to government and moreover cadaster pieces are among the piece number 9 in the survey that has been purchased by the Ministry of Defence. Also, the documents' stock of Kabul governor's office reveals the deed of 1922 of heir of Mohammad Zarin (who sold to Khalili) was not saved in stock but recorded in columns of deeds 90 and 91 dated 1 Sept 2004 as property under control of Khalili. Decree number 1547 of palace states that this type of document cannot prove the ownership of the property.
Based on the documents that the justice ministry gave Killid, the high council of the Supreme court has rejected the plea for a review demanded by State Cases presidency through a bill number 1835, dated 13 March 2012.
The Supreme Court would not respond to Killid's attempts to seek a clarification on the rejection of State Cases review.
Presidential order
The palace assigned a delegation through decree number 3436, dated 1 January 2017, after the decision of three courts for a review of the case by the presidency of State Cases was rejected.
Nasrullah Stanekzai, the head of consulting judicial and justice board in palace, was appointed to lead the investigation. Other members of the delegation were the deputy head of high anti-corruption commission, deputies in the Lands Authority and Kabul Municipality, head of rights department in the Kabul governor's office, deputy in Kabul police headquarters, deputy Kabul intelligence and an authorised representative from the Attorney General Office.
The delegation was given three tasks: to survey the dispute area by foot, and study the documents; assess the township construction against the documents and background of the controversy; and, stop construction in the disputed area. A report was to be submitted within a month to the palace.
Delegation members have confirmed that the investigation was completed and report submitted to the high session of Law Enforcement. The palace says the findings confirm that 60 jeribs of land that was defence property has been occupied.
Murtazawi, the acting head of press in the palace, says the owner of Omed Sabz township is prepared to "pay the price of usurped land as per daily rate of land". Meanwhile, according to Murtazawi, the high session of law enforcement has decided that the AGO should again investigate the issue. The Ministry of Defence also accepts the findings that 60 jeribs were usurped but does not agree to the price set by the owner.
Dawlat Waziri, the spokesperson for the defence ministry, says the price should be "according to the market". Killid tried repeatedly to get Khalili's opinion but failed to get an interview.

 

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