A two-judge bench of Justices D.Y. Chandrachud and Surya Kant made these observations while hearing a petition filed by advocate 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 the state in December 2019.
In 2009, the Supreme court, in In Re: Destruction of Public and Private Properties vs. State of A.P & Ors. had laid down that in cases of recovery, 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. However, the UP Government assigned this task to an Additional District Magistrate, a non-judicial authority.
The Supreme Court bench told Garima Prasad, Additional Advocate General for UP, the state was required to follow the due process of law. When Prasad sought to submit that those aggrieved with the notices are already before the High Court, Justice Chandrachud shot back: “There has to be some guarantee of the due process of law”.
During the hearing, Justice Kant suggested that the state government withdraw all the notices in one stroke and that the Court would then grant the liberty to the state to move the Tribunal constituted under the law enacted by the state.
Prasad sought to justify the state action relying upon the decision of the Allahabad High Court in 2020 in which it had outlined the stringent measures after noting that the state had failed to implement the provisions of the Prevention of Damage to Public Property, enacted in 1984.
Justice Kant, however, remarked that the high court order can only be read in aid of the Supreme Court’s order of 2009 and not to supplant it.
Disapproving the approach of the state government, Justice Kant said the government became the complainant, the adjudicator and the prosecutor, and it passed the order attaching the properties of the protesters. “Is it permissible in law?”, Justice Kant asked Prasad.
The bench eventually granted a week’s time to Prasad to examine the matter as to how the state proposes to cure the illegality.
Last year, after initiating the recovery process, the state government passed a new law under which protestors found guilty of damaging government and private property will face imprisonment or a fine up to one lakh rupees.