The Allahabad High Court on March 18 asked the Uttar Pradesh government to file a reply by March 25 in the recovery of damages ordinance brought by it last week.
The court was hearing a Public Interest Litigation challenging the Uttar Pradesh Recovery of Damage to Public and Private Property Ordinance, 2020 , notified by the government on March 15 after the Cabinet passed the proposal on March 13.
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In its order, the Division Bench of Chief Justice Govind Mathur and Justice Samit Goyal, while issuing notice to the government, noted the arguments raised by the petitioners and said that the “ordinance is arbitrary in its very nature”.
“According to learned counsels, provisions of the ordinance shall allow the persons to be viral for public at large as criminal without their adjudication for any criminal charge. The ordinance as per learned counsels is also in contravention to the law laid down by the apex court in the Rojer Mathew Vs. South Indian Bank Limited 2019 SCC Online SC 1456,” the court said.
The Bench also stated that it is also “emphasised that the intention of the ordinance is only to frustrate and overrule the law laid down by” a bench of the HC which recently asked the state to forthwith remove hoardings erected by it displaying the perosnal information of those accused in the violence during the protests against the CAA.
“Having considered the arguments advanced and also of the facts and grounds referred in the petition for writ, we consider it appropriate to have a counter affidavit to have adequate response by the State of Uttar Pradesh,” the Bench ruled.
The order so notes that the petitioners further submitted that the field wherein the ordinance of 2020 is sought to be operated is already occupied and exhausted by the Central enactments, Code of Criminal Procedure, 1973 and Prevention of Damage to Public Property Act, 1984.
The plea filed by lawyer Shashank Tripathi prays the court to issue a writ, order or direction declaring the ordinance “ultra-vires” to the constitution. The PIL seeks the suspension of or stay against the ordinance brought by the BJP-led Uttar Pradesh government for the recovery of damages to public and private property during protests, bandhs or riots.
“To evade from justifying itself from court of law, the State has played mischief upon the Constitution,” argued Mr. Tripathi in the plea, referring to the questions asked of it by the HC and the Supreme Court in the ‘name and shame’ hoardings episode.
Lawyer Ashma Izzat, a petitioner in another PIL in the case, has argued that the ordinance “is unconstitutional.”
“...Stting up of a tribunal with multiple members and functioning even with a single judicial member and several non-judicial members is not permissible in law as laid down by the Supreme Court,” the PIL said.
The PIL further read: “The ordinance is arbitrary and unconstitutional because it allows for proceedings to be instituted against persons against whom no prima facie evidence exists either of commission of a crime or of destruction of property.”
The Uttar Pradesh government armed itself with a stringent new law to recover compensation from those who damage public and private property during protests and riots.
Claims for compensation will be decided by designated ‘Claims Tribunals’ that will be authorised to investigate complaints and assess the damage.
As per the ordinance, the owner of any private property or the head of the office concerned in respect of public property, may file claims for compensation within three months of any incident that causes any damage during public protests, bandhs or riots. The claim can cite as respondents those who “exhorted” or “instigated” or “committed” acts that caused the damage, as well as those named by the police.
Every order or award passed by the Claims Tribunal would be “final” and no appeal against such orders would be “maintainable” before any court, it said. Also, no civil court will have the jurisdiction to entertain any questions regarding the claims.