The Uttar Pradesh government on Friday drew flak from the Supreme Court for acting on the recovery notices issued to the alleged anti-Citizenship (Amendment) Act protestors in December 2019 and gave one final opportunity to it to withdraw the proceedings and warned that it will quash the proceedings for being in violation of the law.
The top court said that the proceedings initiated in December 2019 were contrary to the law laid down by the Supreme Court and cannot be sustained.
A bench of Justices DY Chandrachud and Surya Kant said that the Uttar Pradesh government has acted like a 'complainant, adjudicator and prosecutor' by itself in conducting the proceedings to attach the properties of the accused.
"Withdraw the proceedings or we will quash it for being in violation of the law laid down by this court," the bench said.
The top court was hearing a plea filed by one Parwaiz Arif Titu seeking quashing of notices sent to alleged protestors by the district administration for recovering losses caused by damage to public properties during the anti-CAA agitations in Uttar Pradesh and asked the state to respond to it.
The plea has alleged that such notices have been sent in an 'arbitrary manner' against a person, who had died six years ago at the age of 94 and also to several others including two people who are aged above 90.
Additional advocate general Garima Prashad, appearing for the UP government, said that 106 FIRs were registered against 833 rioters in the State and 274 recovery notices were issued against them.
"Out of the 274 notices, recovery orders were passed in 236 while 38 cases were closed," she said, adding that under the new law notified in 2020, claim tribunals have been constituted which is being headed by retired district judges, and earlier it was headed by additional district magistrates.
The bench said, "The Supreme Court has passed two judgments in 2009 and 2018, which said that judicial officers should be appointed in claim tribunals but instead you appointed ADMs."
Prashad said that during the anti-CAA protests 451 policemen were injured and parallel criminal proceedings and recovery proceedings were conducted.
The bench said, "You have to follow the due process under the law. Please examine this, we are giving one opportunity till February 18."
Justice Surya Kant said, "Madam Prashad, this is just a suggestion. This plea concerns only a set of notices sent in December 2019, in relation to one kind of agitation or protest. You can withdraw them with a stroke of a pen. 236 notices in a big state like UP is not a big thing. If you are not going to listen, then be ready to face the consequences. We will tell you how the Supreme Court judgments need to be followed."
Justice Chandrachud said that when this court had directed that adjudication has to be done by a judicial officer then how have been ADMs conducting the proceedings.
Prashad referred to a government order issued in 2011 on the constitution of claim tribunals and said that it was approved by the High Court in its subsequent orders.
She said that the state has notified the Uttar Pradesh Recovery of Damages to Public and Private Property Act on August 31, 2020.
Justice Kant said that the government order was disapproved by the High Court in 2011 and at that time the State had promised to bring in a statute but it took 8-9 years for the State to bring out a law.
"We understand in 2011, you were not there but you could have very well rectified the errors," Justice Kant said.
Prashad said that all the accused against whom recovery notices were issued are now before the High Court and long-drawn hearings have taken place.
She said that these proceedings against rioters have been happening since 2011 and if the court sets aside these anti-CAA proceedings, then all of them will come and seek relief.
Justice Chandrachud said, "We are not concerned with other proceedings. We are concerned with only the notices which have been sent in December 2019, during the CAA protests. You cannot bypass our orders. How can you appoint ADMs, when we had said it should be by judicial officers. Whatever proceedings were conducted in December 2019, was contrary to the law laid down by this court."
The bench said, "We will quash the proceedings conducted prior to the legislation with liberty to take the recourse under the new law. Proceedings which are pending will be under the new law. You tell us next Friday what you want to do and we will close this matter for orders."
Prashad said that whatever the court has said will be considered.
On July 9, last year, the top court had asked the UP government not to take action on earlier notices sent to the alleged protestors by the district administration for recovering losses caused by damage to public property during the anti-CAA agitations in the state.
The apex court stated however that the state can take action as per the law and in accordance with new rules.
Titu had contended that these notices were based on an Allahabad high court judgment delivered in 2010 which "is in violation of the guidelines" laid down by the top court in a 2009 verdict, and re-affirmed in a 2018 order.
He submitted that the state government has appointed an additional district magistrate to deal with the process of notices for recovering damages for loss of public property during protests against the CAA whereas the guidelines laid down by the apex court stipulated that retired judges should deal with the matter.
