Playing mischief upon the Constitution – Uttar Pradesh Ordinance on compensation for damage to property challenged

Kosha Doshi | Symbiosis Law School, Pune | 19th March 2020

Shashank Shri Tripathi v. State of UP [PIL No. 532/2020; Allahabad High Court]

Facts:

            The Utter Pradesh Government passed an ordinance called “Uttar Pradesh of Damages to Private and Public Property Ordinance, 2020” after the Allahabad High Court pulled up the authority for displaying banners containing name and photo of people who were alleged for damaging property during anti-CAA riots in Lucknow. The ordinance provided provisions for setting up Claim Tribunals. These tribunals have the authority of adjudicating and complaints in regard to public and private property damage during riots would be handled by the same. 

            Under Section 19 (2) of the ordinance once a decision is passed by the tribunal in regard to recovering damages, the name, address and photo of the person responsible would be published. The petitioner, Shashank Shri Tripathi challenged the ordinance for a couple of reasons. The petitioner further prayed for stay on the ordinance and its applicability as long as the matter was pending before the court. 

Issue:

            Whether the ordinance moved by the sate government evaded from justifying itself from court of law? And whether the ordinance casted as a mischief upon the Indian Constitution?

Question of law:

            Setting up of Tribunals was argued to be way beyond the power of Article 213 (1) of the Indian Constitution. Further violating Article 323B which states the purpose for which tribunals are formed. The ordinance was seen to be arbitrary as it mentioned judicial review under its Chapter 2 Section 3 and adjudication in Chapter 3 Section 7(1) but without procedural and functional safeguard of procedures of law. The ordinance provides that the decision of Claim Tribunal was final and non-appealable in nature. The power to proceed ex parte in case a person fails to apply here. 

            The other grounds which were challenged are that under Chapter 3 Section 7 there leaves an ambiguity for appointment; eligibility of in-service Grade-A state employee is unconstitutional; under Section 7(4) powers conferred with the Sate government gives power for undue interference of executive in a judicial aspect and under Section 8 (7) the tribunal is of civil nature but deals in subject matter of criminal nature. The main ground substantial in the petition is that the state government ordinance prevents itself from justifying it from court of law; it plays a mischief on the Indian Constitution leading to grave injustices. 

            At last, the bench comprising of Justice UU Lalit and Justice Aniruddha Bose stated that the issue and matter at hand would be referred to a larger bench. A comment on the same stated that it would not put a stay on the Allahabad High Court order.