Explained: how DMs selectively used a court order; despite pleas from HC and SC, cases still in limbo

The stay followed UP’s admission to the High Court over how it had interpreted the civil law principle of “joint and several liability” in these cases. In essence, the state said that the full amount assessed as compensation can be recovered from a single person, who can then claim it also from others identified as protesters by filing civil lawsuits against them.

The High Court stay came following a plea by Syed Saif Abbas Naqvi, a Shia cleric. Naqvi was among nine people against whom the Supplementary District Magistrate (ADM) of Lucknow issued an order dated March 3, 2020, to recover Rs 67.73 lakh for property damage caused during the protests in the Hazratganj area. .

ADM’s recovery order stated that it “applied the doctrine of joint and several liability, since the officials shared a common object of illegality, whether they acted alone or not”.

“The amount can be recovered either jointly from all those responsible or from each of them individually. If the amount is recovered from one or a few of the officials, then they are free to sue the other participants in the civil proceedings to recover their share,” the recovery order states.

The principle of joint and several liability is a legal term used to describe a partnership where each party would hold separate but equal responsibility for liability. This would mean that joint liability would be divided into separate but equal shares between each party.

Pursuing this line of action, Naqvi was served with a Notice of Collection dated June 16, 2020 by the Tehsildar of Lucknow asking him to pay the full amount. Failure to deposit the amount within a week would result in the seizure of his movable and immovable assets, the Tehsildar’s order warned.

The order also stated that the defendants could not defend the fact that other people had participated in the demonstration, but that they alone had been found liable for the damage caused and that a disproportionate burden had been imposed on them. “There is no parity in criminality,” the collection order noted.

This brought to light a 2010 judgment by the Allahabad High Court – Mohammad Shujauddin v. State of Uttar Pradesh – which district magistrates across the state initially relied on to issue clawback notices. to more than 500 people identified as anti-CAA protesters.

Significantly, the 2010 Allahabad High Court ruling by single judge Justice Sudhir Agarwal had involved protests from political parties. The bench had asked the government to respond to a set of “guidelines,” which included the state assessing damage to public property and “realizing the amount” of those responsible.

Furthermore, the 2010 High Court ruling contradicts the landmark 2009 Supreme Court ruling on the issue of damage to public property during protests.

The Supreme Court – in Destruction of Public and Private Property v. State of Andhra Pradesh – had ruled that the cost of damage should be recovered by those responsible, but through court proceedings and not by the ‘State. The Supreme Court upheld this precedent in two other cases in 2018.

Contacted by The Indian Express, legal experts described UP’s interpretation of a ‘well-established provision’ as ‘strange’ and ‘without legal basis’. “Perhaps this facilitates the process for the state to recover damages from one person instead of recovering small sums from several people. However, there is virtually no legal basis for this” said Siddharth Chauhan, Assistant Professor, NALSAR University of Law, Hyderabad.

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“Joint and several liability is invoked, for example, in bank loans. In the event of default by the debtor, the guarantor who agreed to be responsible will be asked to pay. Here, however, the state assumes prior agreement for joint and several liability, which is problematic,” Chauhan said.

The existing law to deal with damage to public property is the Prevention of Damage to Public Property Act 1984, which punishes anyone “who commits mischief in doing any act relating to public property” with a penalty of imprisonment of up to five years and a term of imprisonment. good or both.

However, this law was not invoked because in the context of his criminal proceedings, a higher standard of proof would have been required beyond a reasonable doubt. Moreover, a trial under this law would have made it mandatory to hear the other party and would therefore have taken longer to conclude. Instead, the WDA’s presumption of guilt orders in the CAA protests in Hazratganj came in just seven days – the final orders were passed in less than two months.

The UP district magistrates’ orders and collection process were also challenged in the Supreme Court through a PIL. On January 31, 2020, a panel of Judges DY Chandrachud and KM Joseph agreed to hear the plea and issued notice to the state government, but declined to suspend the recovery process. The case was not listed.

Meanwhile, on March 12, 2020, the Supreme Court refused to stay an order from the Allahabad High Court ordering the UP government to remove name and shame posters with photographs and the names of those allegedly damaged property during protests. Four days later, the state government enacted the Uttar Pradesh Recovery of Damage to Public and Private Property Ordinance to replace the legal basis for the process.

On July 6, 2020, a bench of Allahabad High Court comprising then Chief Justice Govind Mathur and Justice Samitra Dayal Singh said in interim orders that petitions against UP clawback notices will be listed for the final hearing on July 16 and “no enforcement action will be taken against the petitioners until then. However, the batch of cases has not yet been listed for the final hearing.

On December 3, 2020, in his order suspending the plea of ​​cleric Naqvi against the notice of recovery of over Rs 67 lakh, another bench of Allahabad High Court Judges Alok Singh and Karunesh Pawar said: “The challenge to notice rests on the premise that the Executive Officer/ADM has no power/authority to issue such notice given the Apex Court decision in Re Destruction of Public and Private Properties (Supra) and rules set by the state government are in the teeth of the decision by the Supreme Court. Relegating the petitioner to raising objections to the jurisdiction/competence of the authority issuing the opinion would be a purely futile exercise. »

As a result of this stay order, at least 35 pleas have been filed in the Allahabad High Court, all of them praying for similar protection against recovery orders issued by Tehsildars across the UP. The High Court extended the stay in each of these cases. None of them have been heard from in detail since then.

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