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Wednesday, April 01, 2020

UP property damage ordinance: Tribunal can hear ex-parte, can’t be questioned

The ordinance was promulgated a day before the High Court’s March 16 deadline for the state to take down the hoardings.

Written by Apurva Vishwanath , Maulshree Seth | Lucknow, New Delhi | Updated: March 16, 2020 7:06:44 am
up protests, protesters property damage compensation, caa protests up, Yogi Adityanath, Yogi Adityanath on caa protest,UP hoarding Anti CAA, UP hoardings CAA protests, lucknow hoardings anti caa protesters, UP hoardings anti caa protesters, sc on UP hoardings, UP law hoardings anti caa protesters Protester torched down a police vehicle as anti-CAA protests took a violent turn in Lucknow. (Express photo by Vishal Srivastav/File)

Under the new Uttar Pradesh Recovery of Damage to Public and Private Property Ordinance promulgated by Governor Anandiben Patel on Sunday, sweeping powers have been granted to a new claims tribunal, including on collecting compensation ex-parte if required, that is, without hearing the individual who is accused of vandalism. Further, the ordinance states that the award of compensation made by the tribunal will be final and cannot be appealed against before any civil court.

The ordinance makes provisions for the setting up of claims tribunals, one or more, to “investigate the damage caused (during protests) and to award compensation” and to cover “cost of action” taken by police and administration for prevention of damage to public properties.

The ordinance also places the burden of proving that one has no “nexus” to a protest, hartal, strike, bandh, riot or public commotion — during which any destruction of public or private property was caused – on the individual, failing which the individual’s properties will be seized.

Significantly, the ordinance states that the principle of absolute liability under law shall apply once “the nexus with the event that precipitated the damage is established”. The law, however, does not specify what the nature of the “nexus” would be.

lucknow hoardings anti caa protesters, UP hoardings anti caa protesters, sc on UP hoardings, UP law hoardings anti caa protesters HC ordered UP govt to take down the hoardings. (File photo)

Under Section 21(2), the new law says that while liability will be borne by the “actual perpetrators of the crime”, one who “instigates” or “incites” the crime would share the liability as per the decision of the claims tribunal. However, the law does not discuss what action constitutes incitement or instigation.

The ordinace was promulgated four days after the Supreme Court refused to stay the Allahabad High Court’s March 9 order for removing the state government’s name-and-shame posters displaying photographs and names of the alleged rioters involved in damaging properties during the anti-CAA protests in December last year.

Explained

Law may face SC test

The timing of the ordinance is significant as it was promulgated four days after the SC refused to stay the Allahabad HC’s order, and a day before the HC’s deadline for removing the state government’s name-and-shame posters of alleged rioters. What remains to be seen is whether the state’s decision will pass the SC test.

According to the ordinance, the tribunal will be headed by a retired district judge appointed by the state government and may include a member who is an officer of the rank of Additional Commissioner. The law allows the constitution of multiple tribunals for a single event to ensure that the proceedings are concluded “preferably within three months” and allows the tribunal to appoint one assessor “who is technically qualified to assess such damage from a panel appointed by the state government”.

The tribunal, the law says, may follow “summary procedure as it thinks fit” and has the powers of a civil court for evaluating evidence and enforcing the attendance of witnesses.

While the law specifies that criminal proceedings can be conducted parallel to the claims proceedings against the same accused, it bars any civil court from interfering with any directives of the claims tribunal.

READ | Lucknow: Messages of support crop up on posters of anti-CAA protesters

The claims petition, as per Section 3 of the ordinance, can be initiated by a circle officer of police based on a first information report (FIR) of the incident and the ordinance allows all persons named in an FIR to be added as “respondents” for claiming compensation.

The new law clarifies that on receipt of the circle officer’s report, the district magistrate or commissioner of police will take immediate step to file a “claims petition”. This will have to be done, preferably within the period of three months, the ordinance says. While district collector or commissioner will review the claims cases every quarter and send their report to the government, private property owners, whose property has been damaged during the protests, can also file complaints for compensation.

Under Section 13 of the ordinance, if the respondent “fails to appear”, then the tribunal “shall proceed ex-parte and the tribunal shall attach property and direct the authorities to publish the name, address along with a photograph with a warning to public at large, not to purchase the property of the respondent”.

The ordinance also gives the authorities the power to publish such information.

While setting a deadline of March 16 for the hoardings to be taken down, the Allahabad High Court had said, “On asking, learned Advocate General failed to satisfy us as to why the personal data of few persons have been placed on banners though in the State of Uttar Pradesh there are lakhs of accused persons who are facing serious allegations pertaining to commission of crimes whose personal details have not been subjected to publicity. As a matter of fact, the placement of personal data of selected persons reflects colorable exercise of powers by the Executive,” the high court had said, adding, “In the present case, the cause is not about personal injury caused to the persons whose personal details are given in the banner but the injury caused to the precious constitutional value and its shameless depiction by the administration.”

The ordinance was promulgated a day before the High Court’s March 16 deadline for the state to take down the hoardings.

When the state government hurriedly moved the Supreme Court against the High Court ruling, the top court had also questioned if such banners can be put up without any law allowing the state power to do so.

The ordinance, while empowering the tribunal the power to proceed ex-parte if the respondent fails to appear, does not consider any exceptions such as failure to serve the notice to the respondent.

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