UP Ordinance Challenged in Allahabad High Court
UP Ordinance Challenged in Allahabad High Court

“Playing mischief upon the Constitution” Uttar Pradesh Ordinance on compensation for damage to property challenged before Allahabad HC

Aditya AK

A petition has been filed before the Allahabad High Court, challenging the recently passed Uttar Pradesh Recovery of Damages to Private and Public Property Ordinance, 2020.

The Ordinance envisions the setting up of Claims Tribunals, which will adjudicate on complaints of damage to both public and private property caused during riots. Section 19(2) of the Ordinance states once a Claims Tribunal passes an order for recovery of damages, the name, address and photograph of the person found responsible shall be published.

The Uttar Pradesh government moved to pass the Ordinance just a week after the Allahabad High Court had pulled up the authorities for displaying banners bearing the names and photographs of persons alleged to have caused damage to property during anti-CAA protests in Lucknow.

Aggrieved by the High Court order, the government moved the Supreme Court shortly thereafter. While the Apex Court referred issues related to the matter to a larger bench, it did not stay the Allahabad High Court’s order.

The petition filed by Shashank Shri Tripathi claims that the Ordinance is a move by the state government “to evade from justifying itself from court of law”, and that by passing such Ordinance, “the State has played mischief upon the Constitution”.

Tripathi claims that the setting up of the Claims Tribunal is beyond the Ordinance making power conferred under Article 213(1) of the Constitution. It also contended that the same is in violation of Article 323B, which lays down the purposes for which tribunals can be formed. Further,

“…the ordinance talks about judicial activity in Chapter 2 Sec.3 and about adjudication in Chapter 3 Sec.7(1) but without procedural and functional safeguard required at law.”

Petition in Allahabad High Court

The other grounds for filing the petition include:

  • under Chapter 3 Sec. 7(2/3), the appointment of Chairman and member is given. It lays down the rule when there would be two or more persons appointed but leaves the ambiguity about the condition when just one person is to be appointed.

  • the eligibility of in-service, Grade-A State employee to hold the chair irrespective of his background in case of single person appointment, which is unconstitutional.

  • under Sec 7(4), the powers given to State government for distribution of work between multiple Tribunals, is undue interference of Executive in a judicial and/ or quasi-judicial aspect.

  • Sec 8(7) of the ordinance terms the nature of the Tribunal to be a Civil Court whereas Subject matter of the Ordinance in questions covers criminal nature.

On these grounds, among others, it is prayed that the Ordinance be stayed during the pendency of the matter.

The Ordinance provides that an order passed by the Claims Tribunal would be final, and that no appeal would lie against the decision before any court.

The Claims Tribunal has the power to proceed ex parte in case persons fail to appear before it. Section 13 further states that for parties who do not appear,

“…tribunal shall attach the property and direct the authorities to publish the name, address along with photograph with a warning for public at large, not to purchase the property of the respondent.”

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