SC rap, UP withdraws recovery notices over CAA protest damage

Accepting the submission, a bench of Justices D Y Chandrachud and Surya Kant gave the state government liberty to proceed under the new law — The Uttar Pradesh Recovery of Damage to Public and Private Property Act, 2020 — and directed it to refund recovery already made under the withdrawn proceedings.

The state repeatedly urged the court to direct status quo, saying that a refund would send a wrong message on deterrence, but the bench said that when a proceeding itself is withdrawn, all actions consequent to it will have to go.

The bench said in its order recording UP’s submission that “on 14th and 15th February 2022, two Government Orders have been issued in terms of which, the show cause notices which were issued in 274 cases for alleged destruction of public property since December 2019 have been withdrawn together with the proceedings which were subsequently carried out pursuant to the notices by the Additional District Magistrates”.

It said: “In view of the enactment of the Uttar Pradesh Recovery of Damage to Public and Private Property Act, 2020, it has been stated that the state government would refer all the above cases to the claims tribunal, which has been constituted in pursuance of the state legislation for further action in accordance with law. In view of the above statement, which has been made on behalf of the state government, nothing further would survive.”

Last week, hearing a plea challenging the notices, the Supreme Court had pointed out that the earlier recovery procedure was not in accordance with its 2009 ruling as reiterated in 2018, that the claims commissioner should be a judge. Pointing out that the notices in question were adjudicated by ADMs, the bench had pulled up the state and asked it to withdraw the notices.

On Friday, the bench appreciated UP’s stand even as the state’s Additional Advocate General Garima Prashad sought liberty for the state to proceed under the new law. She said the intent of the court’s past judgments on destruction of public property have been fulfilled as there has not been a single such incident after the new law was enacted.

Justice Chandrachud responded: “…the idea of our judgment was that there should be accountability when public property is damaged. But our concern is that it has to be overseen by a judicial mind. That ensures due process is followed. That is the thrust of our two judgments. You have brought in new legislation and this (question of recovery) can now be considered as per the legislation.”

The counsel for petitioner Parwaiz Arif Titu submitted that some of those from whom the damages had been recovered were poor and that the court should order a refund. The bench accordingly asked the state to refund the recovery made under the withdrawn proceedings.

“Since the orders in pursuance of the show cause notices have been withdrawn in pursuance of the GOs, there shall be refund of any recovery made in the meantime. This will, however, be without prejudice to such action as may be warranted in terms of the proceedings before and the decision of the claims Tribunal at a subsequent stage,” the bench said.

Prashad pointed out the payment for damages caused worth crores had been recovered and urged the bench to instead order status quo till the Tribunal decides the matters. “The message your lordships’ judgment sought to convey was that such acts cannot take place. With the refund, the deterrence will go, please see the message which will go,” she argued, adding that some property had already been attached and that the order would pose difficulties as the Model Code of Conduct (MCC) for the state polls was in force.

But the bench did not agree. “Imagine the property has been attached, the order pursuant to which that was done has been withdrawn, can we say that the attachment would still continue?…Once the orders have been withdrawn, we cannot say the attachment will continue,” said Justice Chandrachud.

“We have no doubt as to the competence of the state. As soon as the tribunal holds them entitled to or responsible for any damage, we are sure you will issue the lawful process and recover,” said Justice Surya Kant.

The bench also said that the MCC should not get in the way of implementing a Supreme Court order. Prashad then urged the court to allow both sides to approach the Tribunal and said “these amounts and these attachments will remain as security with the claims Tribunal”.

“Both parties can approach the claims Tribunal. But the message (of order of refund) which will go to the public will be that the amount has been refunded and the entire process is illegal and no such recovery can be made,” Prashad said.

Justice Chandrachud responded: “We will clarify that the basis for ordering a refund is because the show cause notices have been withdrawn and therefore it has not become necessary for us to express any view on the merits of the allegations. We have said you can move under the Act. But all consequences of withdrawal have to follow.”

While Prashad argued that “the entire law will be frustrated”, Justice Surya Kant said: “Law cannot be frustrated because you have just brought in new law and you will give full effectiveness to it. You will appoint good people, with an able composition of the tribunal, they will decide matters immediately.”

Justice Chandrachud said: “…all deterrence under the provisions of law has to be provided within the four corners of law. There cannot be any provision for deterrence outside the fold of law. This is a very important principle.”

Last month, The Indian Express in a two-part investigation analysed 46 such recovery orders issued by the Additional District Magistrate (Lucknow East) and found a pattern, which showed the administration played not only prosecutor but judge and jury as well to assess damage, estimate cost, bring charges, and fix liability with many of the accused not even getting a hearing.

In Kanpur, the investigation found 15 families, mostly of daily wagers ranging from a tonga driver to a milkman, who paid Rs 13,476 each to the district administration for their alleged role in the protests. None was aware of how their share of Rs 13,476 was arrived at.