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Allahabad HC stays recovery notice by UP government, matter pending in SC

Slew of such arbitrary notices had been served by the Adityanath government in December 2019-January 2020, many of whom were on innocent bystanders or peaceful protesters

Sabrangindia 15 Feb 2020

UP

The Allahabad HC stayed the ‘recovery notices’ served by the UP police under the Adityanath government since the matter is also pending before the Supreme Court. A bench of Justices Pankaj Naqvi and Saurabh Shyam Shamshery provided ad-interim protection to the petitioner and stayed the notice served by the Additional District Magistrate (ADM) saying that the legality of such notices was already being examined by the Supreme Court (SC). On behalf of Faizan, his counsel Ali Zaidi argued that the notice to him was issued by the ADM, whereas the SC had made clear that such notices could only be issued by a serving or retired High Court judge or a retired District judge as ‘claims commissioner’. In serving the notice on Mohd. Faizan from Kanpur, the state has alleged that he was responsible for damaging property during anti- CAA protests in the city. 

The Supreme Court is hearing a similar challenge in which petitioners have sought a stay on such notices by the government claiming that the notices have been sent to persons who have not been booked under any penal provisions and against whom no criminal offences have been made. Keeping this in mind, the HC has put the matter on hold, subject to the outcome of the proceedings before the SC. The Allahabad HC has asked the state to file a counter-affidavit within a month and has listed the next hearing for April 20, 2020. The anti-CAA protests in UP resulted in over 18 deaths and significant loss to public and private property like government buses, private motorbikes, media vans, etc. Post this, the UP government issued show cause notices under Sections 3 and 4 of the Prevention of Damage to Public Property Act, 1984 and under Section 7 of the Criminal Law Amendment Act, to those allegedly involved in the protests.

In an order passed on February 11, 2020, a division bench of the Allahabad HC granted ad-interim protection to a protester who was served a recovery notice by the Uttar Pradesh Government through an Additional District Magistrate. The court did so citing that a similar matter challenging such notices is presently being heard by the Apex Court in writ petition  Parwaiz Arif Titu v/s State of UPTherefore, the court said that it is in the interest of justice that the matter be heard and decided once the legal position on it is clarified by the Supreme Court and granted ad-interim protection to the petitioner. The petitioner argued that the impugned notice issued by the ADM is in contravention of the guidelines laid down by the Supreme Court in the case of Re: Destruction of Public and Private Properties vs. State of A.P, (2009) 5 SCC 212. It was contended that the Apex Court’s guidelines clearly mandate that it is the High Court that may take suo moto cognizance of an incident where public property has been damaged and set up a machinery to investigate the matter in order to determine the quantum of damages that the identified accused shall have to pay (or be imprisoned in the event of failing to do so). The guidelines of the Apex court state that a sitting or retired judge of the High Court or retired District Judge as a ‘Claims Commissioner’ to estimate the damages and investigate liability.  The matter in the Allahabad HC is Mohd Faizan v. State of U.P. (Order passed in Criminal Misc. Writ Petition No. - 1927 of 2020)

The Order of the Allahabad High Court may be read here:

In the case of Parwaiz Arif Titu v. State of UP, pending  before the Supreme Court, the petitioner has argued that "The Judicial oversight/Judicial security is a sort of safety mechanism against arbitrary action. This means that there is every chance that the Ruling Party in the State could go after its Political opponents or others oppose to it to settle scores.” The High Court Order in 2010 by vesting power in Government without Judicial oversight/Judicial security seems to have overlooked this concern and not have in consonance with Supreme Court guidelines passed in 2009 and affirmed in 2018.”


Jurisprudence

The judgement of the SC and the guidelines issued by it in the case of Re: Destruction of Public and Private Properties vs. State of A.P, (2009) act as interim law of the land to adjudge the damages liable to be paid by any person who is found to have damaged public or private property in any Protest or Riot caused by an organisation. They shall operate in all such cases until the government comes up with a legislation on it. An analysis of the judgement of the SC dated April 16, 2009 is interesting.

Taking a serious note of various instances where there was large scale destruction of public and private properties in the name of agitations, bandhs, hartals and the like, suo motu proceedings were initiated by a Bench of the Apex Court on June 5, 2007. Dr. Rajiv Dhawan, senior counsel agreed to act as Amicus Curiae. After perusing various reports filed, two Committees were appointed; one headed by a retired Judge of this Court Justice K.T. Thomas. The other members of this Committee were K. Parasaran, senior advocate, Dr. R.K. Raghavan, ex-director of CBI, and G.E. Vahanavati, then Solicitor General of India and an officer not below the rank of Additional Secretary of Ministry of Home Affairs and the Secretary of Department of Law and Justice, Government of India. 

The other Committee was headed by F.S.Nariman, senior counsel with other members of the Committee being editor-in-chief of the Indian Express, the Times of India and Dainik Jagaran,  Pranay Roy of NDTV and an officer not below the rank of additional secretary of the Ministry of Home Affairs (MHA), secretary, Ministry of Information and Broadcasting secretary, department of Law and Justice, Government of India. In addition G.E. Vahanavati, Solicitor General and Amicus Curiae were also part of the committee. The committee headed by F.S. Nariman made recommendations; the Court noted the following from them in its judgement:

"There is a connection between tort and crime - the purpose of the criminal law is to protect the public interest and punish wrongdoers, the purpose of tort-law is to vindicate the rights of the individual and compensate the victim for loss, injury or damage suffered by him: however – the distinction in purpose between criminal law and the law of tort is not entirely crystal-clear, and it has been developed from case-to-case. The availability of exemplary damages in certain torts (for instance) suggests an overtly punitive function - but one thing is clear: tort and criminal law have always shared a deterrent function in relation to wrongdoing.

The entire history of the development of the tort law shows a continuous tendency, which is naturally not uniform in all common law countries, to recognise as worthy of legal protection, interests which were previously not protected at all or were infrequently protected and it is unlikely that this tendency has ceased or is going to cease in future. There are dicta both ancient and modern that categories of tort are not closed and that novelty of a claim is no defence. But generally, the judicial process leading to recognition of new tort situations is slow and concealed for judges are cautious in making innovations and they seldom proclaim their creative role. Normally, a new principle is judicially accepted to accommodate new ideas of social welfare or public policy only after they have gained their recognition in the society for example in extra judicial writings and even then the decision accepting the new principle is supported mainly by expansion or restriction of existing principles which "gradually receive a new content and at last a new form".

 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 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.

This Committee is of the view that it is in the spirit of the observation in M.C. Mehta v. Union of India (1987 (1) SCC 395) that this Court needs to lay down principles on which liability could be fastened and damages assessed in cases in which due to behaviour of mobs and riotous groups public and private property is vandalized and loss of life and injury is occasioned to innocent persons. These are clearly "unusual situations", which have arisen and likely to arise in future and need to be provided for in the larger interest of justice.”

The Supreme Court then issued the following guidelines:

In the absence of legislation, the following guidelines are to be adopted to assess damages:

(I)           Wherever a mass destruction to property takes place due to protests or thereof, the High Court may issue suo motu action and set up a machinery to investigate the damage caused and to award compensation related thereto.

(II)          Where there is more than one state involved, such action may be taken by the Supreme Court.

(III)         In each case, the High Court or Supreme Court, as the case may be, appoint a sitting or retired High Court judge or a sitting or retired District judge as a Claims Commissioner to estimate the damages and investigate liability.

(IV)        An Assessor may be appointed to assist the Claims Commissioner.

(V)          The Claims Commissioner and the Assessor may seek instructions from the High Court or Supreme Court as the case may be, to summon the existing video or other recordings from private and public sources to pinpoint the damage and establish nexus with the perpetrators of the damage.

(VI)        The principles of absolute liability shall apply once the nexus with the event that precipitated the damage is established.

(VII)       The liability will be borne by the actual perpetrators of the crime as well as organisers of the event giving rise to the liability - to be shared, as finally determined by the High Court or Supreme Court as the case may be.

(VIII)      Exemplary damages may be awarded to an extent not greater than twice the amount of the damages liable to be paid.

(a)          Damages to public property;

(b)          Damages to private property;

(c)           Damages causing injury or death to a person or persons;

(d)          Cost of the actions by the authorities and police to take preventive and other actions

(X) The Claims Commissioner will make a report to the High Court or Supreme Court which will determine the liability after hearing the parties.

The Supreme Court judgement in Re: Destruction of Public and Private Properties vs. State of A.P, (2009) maye be read here:


Related Articles:

1. Allahabad HC quashes plea of dismissing recovery notice to anti-CAA protestor

2.Did UP Police lathi-charge women anti-CAA protesters in Azamgarh?
3. Intense harshness of the state action to crush the voices of dissent in UP: People's Tribunal

Allahabad HC stays recovery notice by UP government, matter pending in SC

Slew of such arbitrary notices had been served by the Adityanath government in December 2019-January 2020, many of whom were on innocent bystanders or peaceful protesters

UP

The Allahabad HC stayed the ‘recovery notices’ served by the UP police under the Adityanath government since the matter is also pending before the Supreme Court. A bench of Justices Pankaj Naqvi and Saurabh Shyam Shamshery provided ad-interim protection to the petitioner and stayed the notice served by the Additional District Magistrate (ADM) saying that the legality of such notices was already being examined by the Supreme Court (SC). On behalf of Faizan, his counsel Ali Zaidi argued that the notice to him was issued by the ADM, whereas the SC had made clear that such notices could only be issued by a serving or retired High Court judge or a retired District judge as ‘claims commissioner’. In serving the notice on Mohd. Faizan from Kanpur, the state has alleged that he was responsible for damaging property during anti- CAA protests in the city. 

The Supreme Court is hearing a similar challenge in which petitioners have sought a stay on such notices by the government claiming that the notices have been sent to persons who have not been booked under any penal provisions and against whom no criminal offences have been made. Keeping this in mind, the HC has put the matter on hold, subject to the outcome of the proceedings before the SC. The Allahabad HC has asked the state to file a counter-affidavit within a month and has listed the next hearing for April 20, 2020. The anti-CAA protests in UP resulted in over 18 deaths and significant loss to public and private property like government buses, private motorbikes, media vans, etc. Post this, the UP government issued show cause notices under Sections 3 and 4 of the Prevention of Damage to Public Property Act, 1984 and under Section 7 of the Criminal Law Amendment Act, to those allegedly involved in the protests.

In an order passed on February 11, 2020, a division bench of the Allahabad HC granted ad-interim protection to a protester who was served a recovery notice by the Uttar Pradesh Government through an Additional District Magistrate. The court did so citing that a similar matter challenging such notices is presently being heard by the Apex Court in writ petition  Parwaiz Arif Titu v/s State of UPTherefore, the court said that it is in the interest of justice that the matter be heard and decided once the legal position on it is clarified by the Supreme Court and granted ad-interim protection to the petitioner. The petitioner argued that the impugned notice issued by the ADM is in contravention of the guidelines laid down by the Supreme Court in the case of Re: Destruction of Public and Private Properties vs. State of A.P, (2009) 5 SCC 212. It was contended that the Apex Court’s guidelines clearly mandate that it is the High Court that may take suo moto cognizance of an incident where public property has been damaged and set up a machinery to investigate the matter in order to determine the quantum of damages that the identified accused shall have to pay (or be imprisoned in the event of failing to do so). The guidelines of the Apex court state that a sitting or retired judge of the High Court or retired District Judge as a ‘Claims Commissioner’ to estimate the damages and investigate liability.  The matter in the Allahabad HC is Mohd Faizan v. State of U.P. (Order passed in Criminal Misc. Writ Petition No. - 1927 of 2020)

The Order of the Allahabad High Court may be read here:

In the case of Parwaiz Arif Titu v. State of UP, pending  before the Supreme Court, the petitioner has argued that "The Judicial oversight/Judicial security is a sort of safety mechanism against arbitrary action. This means that there is every chance that the Ruling Party in the State could go after its Political opponents or others oppose to it to settle scores.” The High Court Order in 2010 by vesting power in Government without Judicial oversight/Judicial security seems to have overlooked this concern and not have in consonance with Supreme Court guidelines passed in 2009 and affirmed in 2018.”


Jurisprudence

The judgement of the SC and the guidelines issued by it in the case of Re: Destruction of Public and Private Properties vs. State of A.P, (2009) act as interim law of the land to adjudge the damages liable to be paid by any person who is found to have damaged public or private property in any Protest or Riot caused by an organisation. They shall operate in all such cases until the government comes up with a legislation on it. An analysis of the judgement of the SC dated April 16, 2009 is interesting.

Taking a serious note of various instances where there was large scale destruction of public and private properties in the name of agitations, bandhs, hartals and the like, suo motu proceedings were initiated by a Bench of the Apex Court on June 5, 2007. Dr. Rajiv Dhawan, senior counsel agreed to act as Amicus Curiae. After perusing various reports filed, two Committees were appointed; one headed by a retired Judge of this Court Justice K.T. Thomas. The other members of this Committee were K. Parasaran, senior advocate, Dr. R.K. Raghavan, ex-director of CBI, and G.E. Vahanavati, then Solicitor General of India and an officer not below the rank of Additional Secretary of Ministry of Home Affairs and the Secretary of Department of Law and Justice, Government of India. 

The other Committee was headed by F.S.Nariman, senior counsel with other members of the Committee being editor-in-chief of the Indian Express, the Times of India and Dainik Jagaran,  Pranay Roy of NDTV and an officer not below the rank of additional secretary of the Ministry of Home Affairs (MHA), secretary, Ministry of Information and Broadcasting secretary, department of Law and Justice, Government of India. In addition G.E. Vahanavati, Solicitor General and Amicus Curiae were also part of the committee. The committee headed by F.S. Nariman made recommendations; the Court noted the following from them in its judgement:

"There is a connection between tort and crime - the purpose of the criminal law is to protect the public interest and punish wrongdoers, the purpose of tort-law is to vindicate the rights of the individual and compensate the victim for loss, injury or damage suffered by him: however – the distinction in purpose between criminal law and the law of tort is not entirely crystal-clear, and it has been developed from case-to-case. The availability of exemplary damages in certain torts (for instance) suggests an overtly punitive function - but one thing is clear: tort and criminal law have always shared a deterrent function in relation to wrongdoing.

The entire history of the development of the tort law shows a continuous tendency, which is naturally not uniform in all common law countries, to recognise as worthy of legal protection, interests which were previously not protected at all or were infrequently protected and it is unlikely that this tendency has ceased or is going to cease in future. There are dicta both ancient and modern that categories of tort are not closed and that novelty of a claim is no defence. But generally, the judicial process leading to recognition of new tort situations is slow and concealed for judges are cautious in making innovations and they seldom proclaim their creative role. Normally, a new principle is judicially accepted to accommodate new ideas of social welfare or public policy only after they have gained their recognition in the society for example in extra judicial writings and even then the decision accepting the new principle is supported mainly by expansion or restriction of existing principles which "gradually receive a new content and at last a new form".

 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 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.

This Committee is of the view that it is in the spirit of the observation in M.C. Mehta v. Union of India (1987 (1) SCC 395) that this Court needs to lay down principles on which liability could be fastened and damages assessed in cases in which due to behaviour of mobs and riotous groups public and private property is vandalized and loss of life and injury is occasioned to innocent persons. These are clearly "unusual situations", which have arisen and likely to arise in future and need to be provided for in the larger interest of justice.”

The Supreme Court then issued the following guidelines:

In the absence of legislation, the following guidelines are to be adopted to assess damages:

(I)           Wherever a mass destruction to property takes place due to protests or thereof, the High Court may issue suo motu action and set up a machinery to investigate the damage caused and to award compensation related thereto.

(II)          Where there is more than one state involved, such action may be taken by the Supreme Court.

(III)         In each case, the High Court or Supreme Court, as the case may be, appoint a sitting or retired High Court judge or a sitting or retired District judge as a Claims Commissioner to estimate the damages and investigate liability.

(IV)        An Assessor may be appointed to assist the Claims Commissioner.

(V)          The Claims Commissioner and the Assessor may seek instructions from the High Court or Supreme Court as the case may be, to summon the existing video or other recordings from private and public sources to pinpoint the damage and establish nexus with the perpetrators of the damage.

(VI)        The principles of absolute liability shall apply once the nexus with the event that precipitated the damage is established.

(VII)       The liability will be borne by the actual perpetrators of the crime as well as organisers of the event giving rise to the liability - to be shared, as finally determined by the High Court or Supreme Court as the case may be.

(VIII)      Exemplary damages may be awarded to an extent not greater than twice the amount of the damages liable to be paid.

(a)          Damages to public property;

(b)          Damages to private property;

(c)           Damages causing injury or death to a person or persons;

(d)          Cost of the actions by the authorities and police to take preventive and other actions

(X) The Claims Commissioner will make a report to the High Court or Supreme Court which will determine the liability after hearing the parties.

The Supreme Court judgement in Re: Destruction of Public and Private Properties vs. State of A.P, (2009) maye be read here:


Related Articles:

1. Allahabad HC quashes plea of dismissing recovery notice to anti-CAA protestor

2.Did UP Police lathi-charge women anti-CAA protesters in Azamgarh?
3. Intense harshness of the state action to crush the voices of dissent in UP: People's Tribunal

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