Updated: December 31, 2019 11:15:43 pm
In its crackdown on protesters against the Citizenship Amendment Act, the Uttar Pradesh government has directed district administrations to serve notices on persons allegedly involved in arson and damage of public property, and direct them to pay a penalty. The quantum of the penalty is being determined according to the total cost of the damaged property, according to the FIR lodged by the police.
While issuing these notices, the administration has said it derives such powers on the basis of an Allahabad High Court order of December 2, 2010 in Mohammad Shujauddin vs State of Uttar Pradesh. It has said the police are empowered to take penal action under The Prevention of Damage to Public Property Act, 1984. The High Court order, due to lacunae in the 1984 Act, has also empowered the civil administration to take action against the accused.
What was the High Court case about?
The order, passed by Justice Sudhir Agarwal, relates to a scuffle between two persons from different political parties that had resulted in injuries and loss of public property. Justice Agarwal asked the state government to file an affidavit on the number of cases filed by the police under the 1984 Act. The police replied that in 26 years, only 585 cases had been filed, and only 11 cases had been disposed of.
“It appears that everybody believes that public property has no custodian. It is like orphan. It is the birthright to destruct and damage it in a manner they like without any sense of responsibility… What is more disturbing is that law enforcement machinery mostly is a silent spectator watching destruction of public property,” Justice Agarwal observed.
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The High Court then referred to a 2009 judgment of the Supreme Court relating to the destruction of public and private properties. The Supreme Court had issued guidelines on the basis of recommendations made by two committees, headed by former Supreme Court Justice K T Thomas and senior advocate Fali Nariman. In particular, the Nariman Committee’s recommendations had dealt with extracting damages for destruction. Accepting the recommendations, the Supreme Court had said that the rioters would be made strictly liable for the damage, and compensation would be collected to “make good” the damage.
“Where persons, whether jointly or otherwise, are part of a protest which turns violent, results in damage to private or public property, the persons who have caused the damage, or were part of the protest or who have organized it will be deemed to be strictly liable for the damage so caused, which may be assessed by the ordinary courts or by any special procedure created to enforce the right,” the Supreme Court said.
What directions did the HC issue?
On the basis of the Supreme Court observations, the High Court directed that:
🔴As and when any incident of damage of public property takes place, if such agitation has been called at the “invitation of a political party or a sitting or former people’s representative”, a “report” shall be registered by the police against the political party/person by name.
🔴A “concerned department, local body, public corporation” — that is, the owner of the property — would assess the damage and shall file a claim for realization of such amount before a “competent authority”. The competent authority will be nominated by the government, and claims have to be filed within seven days after the nomination.
🔴“Any person” belonging to the area where the public property is damaged can also approach the competent authority. However, when the money is awarded, it has to be furnished only to the concerned department to whom the property belongs.
🔴There will be an “opportunity of hearing” against whom the claims is filed; and the competent authority is mandated to pass the “appropriate order” with a month after the hearing is complete.
🔴If the person is found guilty by the competent authority (an official of the rank of Additional District Magistrate will be responsible for collecting the amount), and if the guilty is unable to pay the entire amount in a single instalment, the district magistrate has to issue a certificate, by which the person is made to pay in arrears under the relevant provisions of the the Revenue Recovery Act.
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