Following Supreme Court's Criticism, UP Govt Withdraws Recovery Notices Issued To Anti-CAA Protesters Before 2020 Act; Court Directs Refund Of Recoveries Made

Mehal Jain

18 Feb 2022 1:33 PM IST

The Court has granted liberty to the State Government to proceed under the new Act.

The State of Uttar Pradesh informed the Supreme Court on Friday that it has withdrawn the 274 notices issued against anti-CAA protesters for recovery of alleged damages prior to the enactment of the Uttar Pradesh Recovery of Damages To Public and Private Property Act 2020.Last week, the Court had criticized the UP Government for initiating the recovery proceedings under executive orders, as...

Last week, the Court had criticized the UP Government for initiating the recovery proceedings under executive orders, as per which the claims will be adjudicated by Additional District Magistrates. A bench led by Justice DY Chandrachud had pointed out that as per the Supreme Court judgments, claims of damages have to be adjudicated by independent tribunals presided over by judicially trained persons.

Today, Additional Advocate General Garima Prashad informed the bench that on 14th and 15th February 2022, 2 government orders have been issued in terms of which show cause notices which were issued in 274 cases for alleged destruction of public property since December 2019 have been withdrawn. She further informed that those cases will be now referred to the Tribunals constituted under the 2020 Act.

At this, Justice Chandrachud orally observed, "When we delivered those judgments in 2009 and 2018, the idea was that there has to be accountability when public property is damaged. But our concern was that this should be through a process which is overseen by judicial minds. Ultimately state properties have to be safeguarded, but at the same time, there has to be a judicial forum which deals with it, so that the due process is ensured. That is the thrust of our two judgments. You have brought in a legislation and this can now be considered as per the new legislation, there is no difficulty"

Recording the new development, the bench disposed of the writ petition filed by one Parwaiz Arif Titu challenging the recovery notice. "The state government, it is clarified, would be at liberty to proceed in accordance with the law under the state legislation of 2020 which has been noted above", the bench clarified in the order.

Further, the Court directed that the recoveries of damages, if any, made under the previous orders, should be refunded.

"Since the orders in pursuance of the show cause notices have been withdrawn in pursuance of the GOs, there shall be refund of any recovery made in the meantime. This will however be without prejudice to such action as may be warranted in terms of the proceedings before and the decision of the claims Tribunal at a subsequent stage", the bench comprising Justice DY Chandrachud, Surya Kant and Vikram Nath stated in the order.

"This will however be without prejudice to such action as may be warranted in terms of the proceedings before and the decision of the Claims Tribunal at a subsequent stage", the bench added in the order.

'Order of refund would send wrong message'- UP state; 'All deterrence has to be within fold of law'- SC

Ms. Prashad insisted that in view of the Model Code of Conduct being in force in the state, the refund as well as the release of attachments would pose difficulties.

Justice Chandrachud asked, "When you are enforcing the judgment of this court, how does the MCC come in? The MCC cannot come in the way of the law! And this is law, not policy!"

"Your Lordships may please direct status quo to be maintained. We assure you that everything will be maintained. The order for refund will come in the way. Please let both parties go to the tribunals", prayed Ms. Prashad

Justice Chandrachud noted, "Imagine the property has been attached, the order pursuant to which that was done has been withdrawn, can we say that the attachment would still continue? Is there a provision in the Act for attachment before judgment? I doubt there is. Once the orders have been withdrawn, we cannot say the attachment will continue. Move the tribunal for such relief"

"How much is the recovery by the way?", asked the judge. "Worth crores", she replied.

Justice Surya Kant remarked, "We have no doubt as to the competence of the state. As soon as the tribunal holds them entitled to or responsible for any damage, we are sure you will issue the lawful process and recover"

"The message Your Lordships' judgment sought to convey was that such acts cannot take place. With the refund, the deterrence will go, please see the message which will go", pressed Ms. Prashad

Justice Chandrachud said, "In our judgment, we have not said you cannot pursue claims against damage to public property. But you have to follow due process of law. Therefore, if you establish your case before the claims Tribunal, you can pursue the remedies in accordance with the law"

Ms Prashad continued to persist, "These amounts and these attachments will remain as security with the claims Tribunal. Both parties can approach the claims Tribunal. But the message which will go to the public will be that the amount has been refunded and the entire process is illegal and no such recovery can be made!"

Justice Chandrachud said, "We will clarify that the basis for ordering a refund is because the show cause notices have been withdrawn and therefore it has not become necessary for us to express any view on the merits of the allegations. We have said you can move under the Act. But all consequences of withdrawal have to follow"

Continuing, the judge said, "There is a certain category of cases where we don't grant refund. But those are cases of unjust enrichment to a business house. Because the burden of the taxation is passed to the ultimate consumer. In Mafatlal, we have said no to refund to a private entity. We have to follow yardsticks of our own constitutional jurisprudence. In India Cement, we held that though the cess was wrongly collected by the state, you will not order refund because the entities have already passed on the burden of the tax"

Ms. Prashad argued, "These are not small vendors. This is not the case. The entire law will be frustrated. This will lead to serious consequences. The Message to the public will be that amount has been refunded or no action will be taken"

Justice Surya Kant said, "Law cannot be frustrated because you have just brought in new law and you will give full effectiveness to it. You will appoint good people, with able composition of the tribunal, they will decide matter immediately"

Justice Chandrachud also observed, "All deterrence under the provisions of law has to be provided within the four corners of law. There cannot be any provision for deterrence outside the fold of law. This is a very important principle. It is as simple as that"

"Article 142 gives the jurisdiction to us. It is our constitutional duty to give effect to our own orders and pass orders so that people don't have to run around", added the judge.

Recap of last week's hearing :

Last week, the bench had criticized the action of UP Govt in issuing the recovery notices violating Supreme Court judgments.

"All the actions that you took before the Act were in violation of the Supreme Court judgments, and hence, against the law. How could you have bypass the judgment of the Supreme Court?", observed Justice Chandrachud.

"Once we said that it has to be a judicial officer (in Claims Tribunals, to assess the damages on account of destruction due to protest), how could you have appointed ADMs to adjudicate? The guidelines of the court were very, very clear that you will adjudicate on the basis of the machinery stipulated! and these were Article 142 directions which were issued!", continued the judge.

"Now, there is no provision in the new law for the transfer of cases which were decided! And no provision for appeal under the new Act! These poor people, whose properties have been attached, will have no remedy!...You have to follow due process of law. Ultimately, there has to be some guarantee of due process also", stated the judge.

Justice Surya Kant also stated, "Have you any respect for Supreme Court orders? You have become the complainant, the prosecutor and the adjudicator and you have passed orders? Is it permissible? 236 notices in a state like UP is not a big thing. They can be withdrawn with one stroke of a pen. If you are not going to listen, then we will tell you how the Supreme Court judgments have to be observed"

Case :Writ Petition(s)(Civil) No(s).55/2020

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Following Supreme Court's Criticism, UP Govt Withdraws Recovery Notices Issued To Anti-CAA Protesters Before 2020 Act; Court Directs Refund Of Recoveries Made

Mehal Jain

The Court has granted liberty to the State Government to proceed under the new Act.

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