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The Division Bench of the Allahabad High Court comprising of Chief Justice Govind Mathur and Justice Samit Goyal, on 18th March 2020, while issuing notice to the Uttar Pradesh Government, said that “the ordinance is arbitrary in its very nature”. As per the learned counsels who made their submissions before the Court, the Ordinance also contravenes the law laid down by the apex court in the Rojer Mathew v. South Indian Bank Limited (2019).
The Bench added that the purpose of the Ordinance seems to be to undermine the law laid down by a Bench of the High Court which recently ordered the State the removal of the hoardings displaying personal information of those accused of damaging properties during the protests against the Citizenship Amendment Act.
Purpose of the ordinance and its salient features:
On 9th March 2020, the Allahabad High Court ordered the State government to remove the hoardings erected at major intersections of Lucknow, stating the decision to be an “encroachment of public liberty”. Senior lawyer Ramakant Gaur said that the UP Government lacks the legal sanctity regarding such publications of photographs and erection of banners. Thereafter, the State government of Uttar Pradesh armed itself with a rigorous new law to recover compensation from those who damaged or may damage public and private property during protests and riots. The Ordinance establishes a “Claims Tribunal” which would have the authority to inquire into the impugned complaints and assess the damages.
As per the Ordinance, the owner of any private property or the head of the concerned office in respect of the public property damaged may file claims for compensation within three months of such incident. The order passed by the Tribunal would be final and no appeal would stand against it before any court of law. The Ordinance allows a presumption of guilt of the accused and expects them to present evidence of their innocence, thereby taking the burden of proof off the accuser’s shoulders.
The Ordinance prescribes that during protests/demonstrations, etc.:
In case the damage is caused to any private property, its owner may complain with the Station officer;
In case the damage is caused to any public property, the District Magistrate/ Commissioner of Police shall take immediate steps to file a claim petition before the Claims Tribunal within three months, based on the reports of the concerned circle officer of Police prepared instead of the FIR registered against such incident.
For adjudicating these claims, the Ordinance stipulates the establishment of a Claims Tribunal at such places as may be notified.
Constitution of the Tribunal:
The Tribunal will consist of a Chairman and as many members, as the state may prescribe. The Chairman of the Tribunal will not be below the rank of a Retired District Judge and the Member of the tribunal will not be below the rank of an officer of Additional Commissioner.
The procedure of Claims Tribunal:
All claims petitions will be filed before the tribunal within 3 months from the alleged date of the incident. A 30 days condonation of delay provision has also been prescribed, subject to the applicant showing reasonable cause.
Notice to parties, appearance, and filings:
A notice of the initiation of proceedings will be sent to the opposite party by the Tribunal, along with a copy of the claim petition. Persons who fail to appear on the appointed date will proceed ex-parte.
The opposite party may file its written statement, within 30 days from the date of service of notice.
Recording of evidence:
The tribunal may take evidence on oath and summon the documents, as may be required.
Appearance through legal practitioner:
The Tribunal may, in its discretion, allow any to appear himself before it through a legal practitioner.
Powers, decisions, and appeal:
The Tribunal will be empowered to provide appropriate compensation to the claimant, based on the principles of absolute liability. Such liability will be borne by the actual perpetrators/instigators of the crime.
The Tribunal has also been given the power to appoint a Claims Commissioner to estimate the damages and investigate liability to assist in holding the inquiry. Such Commissioner will be responsible to make a report to the Tribunal within 3 months.
The Tribunal will have all the powers of a Civil Court. It has also been empowered to hold local inspections by visiting the site of the incident which in its opinion is necessary for a proper decision, at any stage of the inquiry.
The judgment of the tribunal will record the findings on each issue with reasons, amount of compensation and joint/severable liability.
The decision of the Tribunal will be final and no appeal will be maintainable against such order before any court.
Controversy around it:
The impugned Ordinance has a surrounding controversy given some very notable reasons. The ordinance promulgated on 15th March 2020 aims at recovery of damages to public and private property during hartal, bandhs, riots, protests, etc. from those accused of causing such damage via a Claims Tribunal with no authority of judicial review by any other court of law. The Supreme Court, while hearing the appeal of the State government against the order of the Allahabad High Court to remove the hoardings erected in the state capital, asked about the law which supported the impugned action of the Yogi Adityanath led government, and consequently, the Ordinance was cleared by the state cabinet on Friday, 13th March 2020.
The Court held that the Ordinance seemed to be aimed at frustrating and undermining the order of the Court which urged the State government to remove the hoardings given that it had no legal sanctity.
Further, the court observed that the field of law wherein the Ordinance is deemed to be operative has been appropriately and exhaustively covered under central enactments, Code of Criminal Procedure, 1973 and Prevention of Damage to Public property Act, 1984.
Probable way forward:
The suitable way to continue with such compensations seems to be to try and arrange the intended recoveries under the existing laws and meanwhile, wait for the court to accept the justifications of the Ordinance. However, if the court shall deem that the ordinance promulgated by the U.P. government is not acceptable within the ambit of the Constitution, other efforts can be ensured in this regard, both at State and National levels.
Back in 2011, the Supreme Court had itself stated that there must be stringent laws if the damages to properties during protests and riots have to be minimized. The U.P. Recovery of Damage to Public and Private Property Ordinance 2020 is a positive effort towards the cause. However, it must be ensured that the law is in accordance with the spirit of the Constitution and within the scope of the powers of the legislature. It must be ensured that the legislature does not abuse or misuse its power or manipulate the existing laws to achieve a result.
Author: Himanshu Yadav from Faculty of Law, University of Allahabad, Prayagraj.
Editor: Tamanna Gupta from RGNUL, Patiala.