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Tuesday, May 24, 2022

Explained: How DMs selectively used a court ruling; despite pleas in HC and SC, cases still in limbo

The Supreme Court -- in the Destruction of Public and Private Properties versus State of Andhra Pradesh -- had held that the cost of damage must be recovered by those responsible but through a judicial process and not by the state.

Written by Apurva Vishwanath | Allahabad, Lucknow |
Updated: January 24, 2022 8:11:11 am
The orders of district magistrates in UP and the recovery process were also challenged in the Supreme Court through a PIL | Express photo

Despite several pleas in the Supreme Court and Allahabad High Court, the first key judicial intervention against the UP government’s push to recover money for property damage from those identified as anti-CAA protesters in Lucknow came almost a year after the first notices were issued — in the form of a stay by the High Court’s Lucknow bench on December 3, 2020.

The stay followed UP’s admission in the High Court on how it had interpreted the civil law principle of “joint and several liability” in these cases. In essence, the state said the entire amount assessed as compensation can be recovered from one person, who can then claim it equally from the others identified as protesters by filing civil suits against them.

The High Court stay came on a plea from Syed Saif Abbas Naqvi, a Shia cleric. Naqvi was among nine persons against whom the Additional District Magistrate (ADM) in Lucknow had issued an order dated March 3, 2020, to recover Rs 67.73 lakh for damage caused to property during the protests in the Hazratganj area.

The ADM’s recovery order stated that it was “applying the doctrine of joint and several liability, since those held liable shared a common object of illegality, whether they acted on their own or otherwise”.

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“The amount can be recovered either jointly from all those held liable or from any of them individually. If the amount is recovered from one or a few of those held liable, then they are free to proceed against the other participants in civil proceedings to recover their share,” the recovery order stated.

The principle of joint and several liability is a legal term used to describe a partnership where each party would hold separate but equal responsibility for liability. This would mean that joint liability would be divided in separate but equal parts among each party.

Pursuing this line of action, Naqvi was served a recovery notice dated June 16, 2020, by the Tehsildar in Lucknow requiring him to pay the entire amount. Failure to deposit the amount within a week would lead to seizure of his movable and immovable property, the Tehsildar’s order warned.

The order also stated that the accused cannot take the defence that while others participated in the protest, only they were found liable for the damage caused and that a disproportionate burden was placed on them. “There is no parity in crime,” the recovery order noted.

This brought into focus a 2010 judgment of the Allahabad High Court — Mohammad Shujauddin versus State of Uttar Pradesh — that was relied on initially by district magistrates across the state to issue recovery notices to over 500 persons identified as anti-CAA protesters.

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Significantly, the 2010 Allahabad High Court ruling by a single-judge bench of Justice Sudhir Agarwal had involved protests by political parties. The bench had asked the government to reply to a set of “directions”, which included the state assessing the damage to public property and “realising the amount” from those responsible.

Besides, the 2010 High Court ruling contradicted the landmark 2009 ruling of the Supreme Court on the issue of damage to public property during protests.

The Supreme Court — in the Destruction of Public and Private Properties versus State of Andhra Pradesh — had held that the cost of damage must be recovered by those responsible but through a judicial process and not by the state. The apex court had upheld this precedent in two other cases in 2018.

When contacted by The Indian Express, legal experts described UP’s interpretation of a “well-settled provision” as “odd” and “lacking in legal basis”. “It perhaps makes the process easy for the state to recover damages from one person instead of recovering petty amounts from several individuals. However, there is hardly any legal backing to this,” said Siddharth Chauhan, Assistant Professor, NALSAR University of Law, Hyderabad.

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“Joint and several liability is invoked, say, in bank loans. If the debtor defaults, the guarantor who has agreed to be liable will be asked to pay. Here, however, the state is assuming prior agreement for joint and several liability, which is problematic,” Chauhan said.

The existing law to deal with damage to public property is the 1984 Prevention of Damage to Public Property Act, which punishes anyone “who commits mischief by doing any act in respect of any public property” with a jail term of up to five years and a fine or both.

However, this law wasn’t invoked because under its criminal proceedings, a higher level of proof would have been required beyond reasonable doubt. Additionally, a trial under this law would have made it mandatory to hear the other side and so taken longer to conclude. Instead, the ADM’s orders of presumption of guilt in the CAA protests in Hazratganj came in barely seven days — the final orders were passed in less than two months.

The orders of district magistrates in UP and the recovery process were also challenged in the Supreme Court through a PIL. On January 31, 2020, a bench of Justices D Y Chandrachud and K M Joseph agreed to hear the plea and issued notice to the state government but refused to stay the recovery process. The case has not been listed.

Meanwhile, on March 12, 2020, the Supreme Court refused to stay an order by Allahabad High Court directing the UP government to remove name-and-shame posters with photographs and names of those who allegedly damaged property during the protests. Four days later, the state government promulgated the Uttar Pradesh Recovery of Damage to Public and Private Property Ordinance to replace the legal basis of the process.

On July 6, 2020, an Allahabad High Court bench comprising then Chief Justice Govind Mathur and Justice Saumitra Dayal Singh said in interim orders that petitions against UP’s recovery notices will be listed for final hearing on July 16 and “no coercive action be taken against the petitioners till then.” However, the batch of cases is yet to be listed for final hearing.

On December 3, 2020, in its stay order on cleric Naqvi’s plea against the recovery notice for over Rs 67 lakh, another Allahabad High Court bench of Justices Alok Singh and Karunesh Pawar stated: “The challenge to notice is on a premise that the Executive Officer/ ADM has no power/ authority to issue such a notice in view of the decision of the Apex Court in Re Destruction of Public and Private Properties (Supra) and the rules framed by the state government are in the teeth of the decision by the Apex Court. To relegate the petitioner to raise his objections as to the jurisdiction/competency of the notice issuing authority would be an exercise in sheer futility.”

Following this stay order, at least 35 pleas were filed in the Allahabad High Court, all praying for similar protection from recovery orders issued by Tehsildars across UP. The High Court has extended the stay in each of those cases. None of them have been heard in detail since then.

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