# Kusum Lata Yadav & Ors v. State of U.P. & Ors

- **Citation:** (2022) 9 ILRA 329
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-11
- **Case number:** Writ C No. 28249 of 2021
- **Bench:** Attau Rahman Masoodi, Vikram D. Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kusum-lata-yadav-ors-v-state-of-u-p-ors-49019
- **Pages:** 11

## Headnote

A. Disaster Management Act, 2005 -
Sections 12 & 38 - Ex-gratia assistance -
COVID Pandemic - Entitlement of family
members of person, who died during
election duty - Cause of death, how far
material - Held, once the admission of
deceased persons was on account of
Covid-19, the resulting cause being heart
failure or dysfunction of any other organ
leading to death is immaterial and would
nevertheless be treated as Covid-19 death
- High Court directed the opposite parties
to release ex-gratia payment within one
month. (Para 29 and 30)
B. Constitution of India - Article 226 -
Writ - Jurisdiction of High Court u/s 12 of
Disaster Management Act, 2005 - Suit
proceeding, where lie - Held, for any claim
that has trammelled in Law through a
government order within the scope of
Section 12 r/w Section 38 of the Act of
2005, the jurisdiction has been vested in
the Supreme Court of India and the High
Courts to entertain a proceeding of suit or
other proceeding, hence all the writ
petitions filed for payment of ex-gratia
amount are maintainable. (Para 25)
Writ petition allowed. (E-1)
List of Cases cited:-

## Text

9 All. Kusum Lata Yadav & Ors. Vs. State of U.P. & Ors.
329
the Authorised Controller to continue,
particularly when no other grounds for
ousting the Committee of Management and
for
continuance
of
the
Authorised
Controller have been shown to exist. So far
as the order dated 30.7.2022 passed by the
District Magistrate/Authorised Controller
appointing the Sub Divisional Officer,
Sadar to discharge the duties as Authorised
Controller is concerned the Court is of the
opinion that such an order cannot be
sustained on the principle "Delegatus non
potest delegare", i.e. one to whom a power
is delegated cannot himself further delegate
that power.

13.

In
view
of
the
above,
considering
the
totality
of
the
circumstances the order dated 29.7.2022
passed
by
the
State
Government
exercising powers under Section 58 of the
U.P.
State
Universities
Act,
1973
(Annexure-17 to the writ petition) as also
the order dated 30.7.2022 passed by the
District
Magistrate
/
Authorised
Controller (Annexure-18 to the writ
petition) are set aside.

14. The writ petition is allowed. No
order as to costs.
----------
(2022) 9 ILRA 329
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.08.2022

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE VIKRAM D. CHAUHAN, J.

Writ C No. 28249 of 2021
with other connected cases

Kusum Lata Yadav & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents
Counsel for the Petitioners:
Sri Siddharth Khare, Sri Ashok Khare (Sr.
Advocate)

Counsel for the Respondents:
C.S.C., Sri Tarun Agarwal

A. Disaster Management Act, 2005 -
Sections 12 & 38 - Ex-gratia assistance -
COVID Pandemic - Entitlement of family
members of person, who died during
election duty - Cause of death, how far
material - Held, once the admission of
deceased persons was on account of
Covid-19, the resulting cause being heart
failure or dysfunction of any other organ
leading to death is immaterial and would
nevertheless be treated as Covid-19 death
- High Court directed the opposite parties
to release ex-gratia payment within one
month. (Para 29 and 30)
B. Constitution of India - Article 226 -
Writ - Jurisdiction of High Court u/s 12 of
Disaster Management Act, 2005 - Suit
proceeding, where lie - Held, for any claim
that has trammelled in Law through a
government order within the scope of
Section 12 r/w Section 38 of the Act of
2005, the jurisdiction has been vested in
the Supreme Court of India and the High
Courts to entertain a proceeding of suit or
other proceeding, hence all the writ
petitions filed for payment of ex-gratia
amount are maintainable. (Para 25)
Writ petition allowed. (E-1)
List of Cases cited:-
1. Writ Petition (Civil) No. 539 of 2021; Gaurav
Kumar Bansal Vs U.O.I. & ors. decided by
Supreme Court on 04.10. 2021
2. Delhi Development Authority & anr. Vs Joint
Action Committee, Allottee of SFS Flats & ors.;
(2008) 2 SCC 672
3. In Re, Distribution of Essential Supplies &
Services During Pandemic; (2021) 7 SCC 772
4. Dhulabhai etc. Vs St. of M.P. & anr.; AIR
1969 SC 78
330 INDIAN LAW REPORTS ALLAHABAD SERIES
5. N. Nagendra & Co. Vs St. of A.P.; (1994) 6
SCC 205
(Delivered by Hon'ble Attau Rahman
Masoodi, J.)

1. This batch of writ petitions involving
common question of facts and law were
heard together and are being decided by a
common judgment.

2. The petitioners have questioned the
legality of Clause 12 of the Government
Order dated 1st June, 2021, which was issued
in modification of the earlier Government
Orders dated 6th April, 2021 and 4th May,
2021. By means of the impugned government
order, the State of Uttar Pradesh raised the
amount
of
ex-gratia
payment
to
the
dependants of a deceased employee dying on
election duty due to COVID-19 from Rs.15
lacs to Rs.30 lacs subject to the fulfilment of
conditions in Clause-12.

3. In usual course, the National
Authority by virtue of Section 12 of the
Disaster
Management
Act,
2005
is
empowered to recommend guidelines for the
minimum standards of relief which is to be
provided to persons affected by disaster.
Section 12 of the Act of 2005 for ready
reference is extracted hereunder:-

"12. Guidelines for minimum
standards
of
relief.
--The
National
Authority shall recommend guidelines for
the minimum standards of relief to be
provided to persons affected by disaster,
which shall include,--

(i) the minimum requirements to
be provided in the relief camps in relation to
shelter, food, drinking water, medical cover
and sanitation;

(ii) the special provisions to be
made for widows and orphans;

(iii)
ex
gratia
assistance
on
account of loss of life as also assistance on
account of damage to houses and for
restoration of means of livelihood;

(iv) such other relief as may be
necessary."

4. It is evident from the above quoted
provision that ex-gratia assistance on account
of loss of life is one of the measures for
restoration of the means of livelihood to the
members of aggrieved family. The State
Government is also empowered under
Section 38 of the Act of 2005 to take
measures defined under Section 38(2) which
include the financial help in the nature of exgratia payment under Section 38(2)(l) and
this is how the aforesaid government orders
have come to be issued for compensating the
loss of lives to the dependants of those who
on being deputed to perform election duties
in the U.P. Panchayat Elections - 2021
contracted COVID-19 and died. Section
38(2)(l) for ready reference is reproduced
hereunder:-

"Section 38(2)(l):- such other
matter as it deems necessary or expedient for
the
purpose
of
securing
effective
implementation of provisions of this Act."

5. A person having contracted
pandemic i.e. COVID-19 while on election
duty became a matter of consideration in
the light of recommendations made by the
Election Commission of India as well as
the National Authority. Therefore, to avoid
litigation as against the claims which may
have arisen on account of the death of a
person discharging election duty by his
dependants, the ex-gratia payment to the
tune of Rs.30 lacs was a measure evolved
by the State Government to compensate the
dependants of any such loss of life, whose
death occurred on account of COVID-19
9 All. Kusum Lata Yadav & Ors. Vs. State of U.P. & Ors.
331
having been contracted while on election
duty. The Election Commission of India for
the purpose of ex-gratia payment is said to
have defined the election duty to mean the
performance of such duty by leaving one's
house on a scheduled day till a person
returned back home. The election duty
included training, polling duty, counting
duty or any other duty relating to election.
It implies that contracting COVID-19 while
on election duty after leaving one's place of
residence till reaching back home was the
range of movement to which every case has
to be corroborated.

6. In the present case, the U.P.
Panchayat Election was notified in the
month of March, 2021 whereafter the
schedule of election duty in various
capacities came to be issued on 6th April,
2021. The chart below indicates the
relevant details as regards the petitioners
being sent on election duty, date of
diagnosis of COVID-19 followed by their
hospitalization and date of death in the
hospitals or otherwise.

Case
No.

Petitio
ner
Name
of
deceas
ed/
date of
death
Date
of
Electio
n duty
Test
ed
Posi
tive
on
Tim
e
Gap
betw
een
date
of
duty
and
testi
ng
in
days
Ti
m
e
ga
p
be
tw
ee
n
da
te
of
te
sti
ng
an
d
da
te
of
de
at
h
in
Time
gap
betwe
en
date of
duty
and
death
in
days
da
ys
Writ
-C
No.1
594
of
2022
Smt.
Priyan
ka
Singh
Late
Sheshr
am
Chaud
hary/
28.5.2
021
9.4.20
21
(traini
ng
single
day)
07.0
5.21
28
21 50
Writ
-C
No.2
8249
of
2021

Smt.
Kusu
m Lata
Yadav
Late
Ashok
Kumar
/
15.5.2
021
12.4.2
021
(traini
ng
single
day
23.4
.202
1
11
23 34
Writ
-C
No.1
600
of
2022
Pushm
a Devi
Pathak
Late
Surend
ra
Nath
Pathak
/
23.5.2
021
10.4.2
021
(traini
ng) &
14.4.2
021
(both
single
days)
27.4
.202
1
13
26 44
&40
Writ
-C
No.9
460
of
2022
Smt.
Geeta
Devi
Late
Ravi
Shank
ar
Vishw
akarm
a/
25.4.2
021
13.4.2
021
(traini
ng
single
day)
N/A N/A N
A
13
Writ
-C
No.1
485
of
2022

Shanta
nu
Singh
Late
Kapta
n
Singh/
21.6.2
021
12.4.2
021
(traini
ng) &
2.5.20
21
(both
single
days)
22.5
.202
1
20
29 71 &
51
Writ
-C
No.3
0130
of
2021

Subha
sh
Chand
ra
Late
Poona
m
Rani/
02.06.
2021
29.4.2
021
(electi
on
duty
single
day)
102
05.2
021
13
21 33
Writ
-C
No.3
276
of
2022

Smt.
Khush
boo
Late
Shaku
ntala
Devi/
07.07.
2021
29.4.2
021
(electi
on
duty
single
day &
22.6
.202
1

55
15 70
332 INDIAN LAW REPORTS ALLAHABAD SERIES
13.4.2
021
(traini
ng
single
day)

7. Taking into account the fatal impact
of COVID-19, it was for this reason that
the State Government by a Government
Order dated 6th April, 2021 decided to
compensate for the loss of life of any
employee sent on election duty to the
dependants with the payment of Rs.15 lacs
which was enhanced to Rs.30 lacs. The
definition of election duty specified by the
Election Commission of India adopted in
paragraph 2 of the Government Order dated
1st June, 2021 of which Clause 12 has been
impugned herein remained para materia.
The
hardship
in
the
matter
of
implementation of the ex-gratia payment to
the dependents of pandemic victims was
experienced on account of relating the
COVID-19 deaths during election duty
which fell for consideration before the
State Government and the matter was
considered in the background of published
opinions in Lancet journal which were
relied upon by the State Advisory Board of
COVID-19/Director, SGPGI, Lucknow.

8. The Government Order issued by
the State of U.P. on 1st June, 2021 dispelled
many confusions as regards contracting
COVID-19 and broader principles were
adopted to ameliorate the implementation
of the compensatory scheme evolved by the
State. In the first place, the definition of the
election duty was liberally adopted to
include all the activities in relation to
election duties where the probability of
contracting
COVID-19
prior
to
its
diagnosis was prominent. The definition
clause however made it dependant upon a
person going to election duty on a
scheduled date till he returned back home.
The most difficult aspect of the scheme is
to relate a COVID-19 death to the date of
election duty. For any death on account of
COVID-19, it is essential for a claimant to
establish that the deceased had attended the
election duty prior to his death which he
contracted while on election duty. The
difficulty
certainly
arises
in
the
determination of the fact of contracting
Covid infection but where it is definite that
a person prior to diagnosis or death had
performed election duty, it is to be assumed
that COVID-19 was contracted while on
election duty unless proved otherwise. The
State Government in order to mitigate the
technical hardship considered the entire
issue with the assistance of experts and it
was found that a COVID-19 patient from
the date of disease onset had mortality
expectancy within 28 days. There is
however,
no
scientifically
proven
assessment of time, after the disease onset,
within which a person may be diagnosed as
COVID positive during the range of
mortality expectancy period as derived
from experimentation or data.

9. In these circumstances, the State
Government in order to have a broader
application
of
the
policy
decision
proceeded to lay down the parameters for
entitlement
of
ex-gratia
payment.
Paragraph 12 of the impugned Government
Order lays down three parameters. Firstly,
COVID-19 deaths which occur within 30
days of the election duty would entitle a
claim.
Secondly,
the
test
reports
Antigen/RT PCR positive, blood report or
CT Scan would be a sufficient proof to
prove the death having occurred on account
of COVID-19 and thirdly, an asymptomatic
case meeting with the death on account of
COVID-19 within 30 days of election duty
was also covered under the scheme.
9 All. Kusum Lata Yadav & Ors. Vs. State of U.P. & Ors.
333

10. In this background, three type
of cases have emerged before this Court.
In first category, the asymptomatic
deaths having occurred within 30 days
from the date of election duty on account
of COVID-19 and in the second category,
where symptoms were detected within a
gap of 30 days from the date of election
duty but the actual death occurred
beyond 30 days from the date of election
duty and, thirdly, where symptoms were
detected beyond 30 days of election duty
and death occurred within 30 days of
detection of symptoms or later.

11. The case put-forth by the State in
response to the above situations in two
fold. It is urged that the first category cases
are not entitled to the ex-gratia payment as
there is no proof of a deceased having
contracting COVID-19 while on election
duty and to deny the claim of second and
third category, it is submitted that any death
that has occurred beyond a period of 30
days from the date of election duty is not
relatable to the election duty, hence the
claim is liable to rejection.

12. Sri Ashok Khare, learned Senior
Advocate appearing for the petitioners has
argued in the light of order passed by the
Apex Court on 4th October, 2021 passed in
Writ Petition (Civil) No. 539 of 2021
(Gaurav Kumar Bansal Vs. Union of
India and others) but the guidelines
embodied therein being of a later point of
time do not provide us a complete answer.
The ICMR guidelines pointed out also do
not doubtlessly support or counter the stand
of the State Government put-forth.

13. Learned counsel for the State has
also laid emphasis on the point that the
controversy involves a policy decision of
the State based on the opinion of experts,
therefore, the Court has no option of
reading down the scope of Government
Order otherwise than the manner in which
it
is
supported
by
its
scientific
understanding. The submission put-forth is
to the effect that any irrational or layman's
understanding of the Government Order
would
bring
in
a
heterogeneous
classification or class within the class
which shall offend the mandate of Article
14 of the Constitution of India. In support
of
the
argument
put-forth,
learned
Additional Advocate General for the State
has relied upon certain decisions.

14. It is a well known fact that
COVID-19 was witnessed no less than a
largest precedented catastrophe leading to
mortality of human lives on a very high
scale. The scientific advancement was
almost bent on its knees to acknowledge
helplessness, yet, some how the preventive
measures sensitised by the State coupled
with medical aid overcame upon the threat
to human life for restoration of normalcy. It
is not to forget that the behavioural
obedience i.e. use of mask and following
guidelines on free movement was as
significant as the medicinal values and
much was attributed to the superstitions as
well. In the general perception of the
people, the asymptomatic and symptomatic
cases of COVID-19 were marginally
distinct and in both the type of cases, the
common cause was Covid infection. It is
not the case before us that the deaths have
not occurred because of COVID-19 but
what is disputed is that the deaths having
taken place beyond 30 days from the date
of election duty would not entitle the
dependants for the ex-gratia payment. This
defence is based on Clause-12 of the
Government Order dated 1st June, 2021
impugned herein this bunch of writ
petitions.
334 INDIAN LAW REPORTS ALLAHABAD SERIES

15. In the background stated above,
the
question
that
crops
up
for
consideration is as to whether a COVID19 death for the purposes of ex-gratia
payment
is
rightly
regulated
and
understood by the executive as per
Clause-12 of the Government Order, if
not, whether the defence put forth is
violative of the object of equality read
with the purpose of Section 12(iii) of the
Act of 2005.

16. This Court may note that the life
and its dignified protection is the first and
foremost duty of the welfare state. During
the course of disaster management, certain
duties on the part of the State assume more
significance. We have experienced that
during COVID-19, broader guidelines
striking note of caution were issued from
time to time to restrict free movement, yet
for the purposes of governance within our
democratic organization, the guidelines
prohibiting
assembly
had
to
be
compromised by the State of U.P. itself so
as to carry out the U.P. Panchayat Elections
in furtherance of the mandate of law. The
sovereign function thus necessitated the
engagement of human resource in bulk
which necessarily visited the state with a
more onerous duty to protect the lives of
those who were engaged in election duty. It
is needless to reiterate that the protection of
life of all such individuals engaged in
election duty even on a single day during
COVID-19 became an absolute duty of the
State. The State at the time of outbreak of
pandemic remained under an obligation to
free the environment from the probabilities
of outbreak or spread of infection and the
hospital services were equally liable to be
maintained conducive to the survival of
human life. In the case at hand, all these
claims where the persons sent on election
duty died of COVID-19, it necessarily must
be understood that all such persons for the
purpose of care, treatment and protection of
life remained at the mercy of the State. The
wisdom of the policy devised by the State
lies in meeting the emerging situation for
the dependants of a COVID-19 victim,
therefore, equal treatment of all is bound to
be achieved by adopting a pragmatic
approach.

17. Having regard to the three
parameters provided in para-12, this Court
would note that any case detected beyond
the period of 30 days from election duty as
covid positive is certainly a category not
covered under the scheme. The death of
asymptomatic cases within 30 days of
election duty as per the mandate of
government order is covered under the
G.O. Provided the death certificate on
account of COVID-19 is produced by the
claimants. This principle broadens the
scope of G.O. for symptomatic cases where
the infection after election duty was
detected within 30 days, however, death in
such a case occurred beyond the period of
30 days. The two situations that deserve to
be treated at par are; firstly, where the death
occurred due to covid-19 within a period of
30 days of participation in election duty in
an asymptomatic case and; secondly, where
the infection of COVID-19 was detected
within 30 days of election duty but the
death occurred thereafter during treatment
or otherwise.

18. The bar of 30 days period in the
cases where infection was detected within
30 days of election duty but death occurred
beyond the same is not attributable to any
negligence on the part of victim that would
defeat the claim rather it is owing to the
lack of extra ordinary care or treatment of
which the duty would lay on the State.
Therefore, all the detected cases within 30
9 All. Kusum Lata Yadav & Ors. Vs. State of U.P. & Ors.
335
days of election duty cannot be segregated
from those where the infection despite
remaining undetected resulted into the
death of a victim due to COVID-19 within
the period prescribed i.e. 30 days. Any
other principle derived by the State on the
basis of scientific understanding is bound
to defeat the very object of the Government
Order and the purpose will frustrate. It is
not necessary for the State Government to
ahdere to the strict scientific principles in
the matter of situations which went beyond
the control of scientific means, therefore,
the State Government in its caveat cannot
impose an embargo upon the Courts of law
to construe the scope of policy strictly
within the scientific principles.

19. The scientific understanding alone
is not decisive to implement the policy of
the State which by its very nature is a mix
of multiple variables. The State is not to be
guided by the laboratory results or
publication in journals alone but what is
relevant is the impact of a disaster as it may
be understood in common parlance not
opposed to scientific principles altogether.
Scientific temper is itself a matter of
concern and debatable. For example the
elephant's head on the holy mankind body
of 'deity' of Lord Ganesha may or may not
be opposed to scientific beliefs but it
accompanies our mystical belief from ages
and likewise many more. The scientific
discoveries
and
inventions
promote
scientific temper but failure of science is
bound to leave a grey area for our personal
faith,
traditional
usages,
beliefs
and
superstitions until modern science or
spiritual attainments unfold the absolute
truth. By quoting one instance, it is not
meant to hurt anyone's sentiments rather is
illustrative
of
our
understanding.
Embracing personal faith, usages, belief
and
superstitions
besides
scientific
temperament is the beauty of Article 21 of
the Constitution of India within which the
horizons of our freedom grow for an
inclusive
dignified
existence.
This,
however, does not suggest that the State has
a religion as opposed to democracy that
guarantees the rule of law to achieve the
object of equality amongst the citizens.

20. This Court would thus reject the
argument of the State to approach the issue
at hand purely on the basis of scientific
principles as portrayed on the strength of
some publication in the Lancet Journal and
expect
the
State
to
implement
the
impugned clause of Government Order
dated 1st June, 2021 without discriminating
between the deaths of asymptomatic and
symptomatic cases on the yardstick of 30
days from the date of election duty. It must
be read beneficially for those cases too
which were detected within 30 days and in
that event, the date of death would become
immaterial once it is on account of
COVID-19.

21. The constitutional morality under
the directive principles of the State is well
reflected from Article 38 of the Constitution
of India which postulates eradication of
inequality. This Article is the driving force of
the public policy and offers ample guidance
to the executive as well as all other organs of
the State to streamline the beneficent
decisions serve the purpose and object of
social and economic justice equally. The apex
court as far back as in the decision reported in
(2008) 2 SCC 672 (Delhi Development
Authority, & another vs. Joint Action
Committee, Allottee of SFS Flats & Ors) in
para-65 observed as under:

"65. Broadly, a policy decision is
subject to judicial review on the following
grounds :
336 INDIAN LAW REPORTS ALLAHABAD SERIES

(a) if it is unconstitutional;

(b) if it is dehors the provisions of
the Act and the Regulations;

(c) if the delegatee has acted
beyond its power of delegation;

(d) if the executive policy is
contrary to the statutory or a larger
policy."

In a recent decision of the apex
court reported in (2021) 7 SCC 772
(Distribution of Essential Supplies and
Services During Pandemic, In Re.), the
apex court has succinctly dealt with the
permissible extent of judicial review in
policy decisions of the State and for our
purpose paras 15 to 19 of the judgement
being relevant are extracted as under:

"15. It is trite to state that
separation of powers is a part of the basic
structure of the Constitution. Policymaking continues to be in the sole domain
of the executive. The judiciary does not
possess the authority or competence to
assume the role of the executive, which is
democratically accountable for its actions
and has access to the resources which are
instrumental
to
policy
formulation.
However, this separation of powers does
not result in courts lacking jurisdiction in
conducting a judicial review of these
policies.
Our
Constitution
does
not
envisage courts to be silent spectators when
constitutional
rights
of
citizens
are
infringed by executive policies. Judicial
review
and
soliciting
constitutional
justification for policies formulated by the
executive is an essential function, which
the courts are entrusted to perform.

16. We had clarified in our order
dated 30 April 2021, that in the context of
the public health emergency with which the
country is currently grappling, this Court
appreciates the dynamic nature of the
measures. Across the globe, the executive
has been given a wider margin in enacting
measures which ordinarily may have
violated the liberty of individuals, but are
now incumbent to curb the pandemic.
Historically,
the
judiciary
has
also
recognized that constitutional scrutiny is
transformed during such public health
emergencies, where the executive functions
in rapid consultation with scientists and
other experts. In 1905, the Supreme Court
of the United States in Jacobson vs
Massachusetts` considered a constitutional
liberty
challenge
to
a
compulsory
vaccination law that was enacted to combat
the smallpox epidemic. Harlan, J had noted
the complex role of the Government in
battling public health emergencies in the
following terms (Jacobson case SCC
OnLine US SC paras 6 and 18):

"6.......the State may invest local
bodies called into existence for purposes of
local administration with authority in some
appropriate way to safeguard the public
health and the public safety...

18.......While this court should
guard
with
firmness
every
right
appertaining to life, liberty or property as
secured to the individual by the Supreme
Law of the Land, it is of the last importance
that it should not invade the domain of
local authority except when it is plainly
necessary to do so in order to enforce that
law. The safety and the health of the people
of Massachusetts are, in the first instance,
for that Commonwealth to guard and
protect......So far as they can be reached by
any government, they depend, primarily,
upon such action as the State in its wisdom
may take, and we do not perceive that this
legislation has invaded any right secured by
the Federal Constitution."

17. The Supreme Court of United
States, speaking in the wake of the present
COVID-19 pandemic in various instances,
has overruled policies by observing, inter
alia, that "Members of this Court are not
9 All. Kusum Lata Yadav & Ors. Vs. State of U.P. & Ors.
337
public health experts, and we should
respect the judgment of those with special
expertise and responsibility in this area.
But even in a pandemic, the Constitution
cannot be put away and forgotten" and "a
public health emergency does not give
Governors and other public officials carte
blanche to disregard the Constitution for as
long as the medical problem persists. As
more medical and scientific evidence
becomes available, and as States have time
to craft policies in light of that evidence,
courts should expect policies that more
carefully account for constitutional rights".

18. Similarly, courts across the
globe have responded to constitutional
challenges to executive policies that have
directly or indirectly violated rights and
liberties of citizens. Courts have often
reiterated the expertise of the executive in
managing a public health crisis, but have
also warned against arbitrary and irrational
policies being excused in the garb of the
"wide latitude" to the executive that is
necessitated to battle a pandemic. This
Court in Gujarat Mazdoor Sabha vs State
of Gujarat, albeit while speaking in the
context of labour rights, had noted that
policies to counteract a pandemic must
continue to be evaluated from a threshold
of proportionality to determine if they, inter
alia, have a rational connection with the
object that is sought to be achieved and are
necessary to achieve them.

19. In grappling with the second
wave of the pandemic, this Court does not
intend to second-guess the wisdom of the
executive when it chooses between two
competing and efficacious policy measures.
However,
it
continues
to
exercise
jurisdiction to determine if the chosen
policy measure conforms to the standards
of
reasonableness,
militates
against
manifest arbitrariness and protects the right
to life of all persons. This Court is
presently assuming a dialogic jurisdiction
where various stakeholders are provided a
forum to raise constitutional grievances
with respect to the management of the
pandemic. Hence, this Court would, under
the auspices of an open court judicial
process, conduct deliberations with the
executive where justifications for existing
policies would be elicited and evaluated to
assess whether they survive constitutional
scrutiny."

22. The ex-gratia payment payable by
the State was notified in terms of Section
38 of the Act of 2005 referred to above and
this was a promise held to the dependants
of any such person who died due to
COVID-19 having contracted the infection
while on election duty. The compensation
for loss of life certainly is an actionable
claim and it is for this reason that Section
71 of the Act of 2005 provides as under:-

"71. Bar of jurisdiction of court.
--No court (except the Supreme Court or a
High Court) shall have jurisdiction to
entertain any suit or proceeding in respect
of anything done, action taken, orders
made, direction, instruction or guidelines
issued
by
the
Central
Government,
National Authority, State Government,
State Authority or District Authority in
pursuance of any power conferred by, or in
relation to its functions, by this Act.

23. We must remember that the State
is not to be driven by the scientific
understanding of situation alone but what is
relevant is the general perception of people
which settles for acceptance. If judiciary
cannot form an opinion contrary to law, it
equally applies on the executive not to
loose sight of the purpose for which laws
are made. Scientific reasons are not always
338 INDIAN LAW REPORTS ALLAHABAD SERIES
sacrosanct but what remains is the purpose
and objects of legislation.

24. The Supreme Court as well as the
High Courts have been empowered to
entertain any suit or proceeding in respect
of anything done, action taken, orders made
etc.
by
the
respective
authorities/
governments.

25. Therefore, for any claim that has
trammelled in law through a government
order within the scope of Section 12 read
with Section 38 of the Act of 2005, the
jurisdiction has been vested in the Supreme
Court of India and the High Courts to
entertain a proceeding of suit or other
proceeding, hence this Court is convinced
that all the writ petitions filed for payment
of ex-gratia amount are maintainable. This
is, however, not to suggest that Article 21
of the Constitution of India in the matter of
pandemic or disasters imposes a blanket
pecuniary liability upon the State as regards
the loss of life of citizens or their property
to which any negligence of the State
authorities or agents or misconstruction of
a policy decision arrived at for a larger
purpose is an exception. It can, therefore,
be inferred that a suit for recovering
damages as a measure of compensation can
be filed against the State for negligence of
its agents within the scope of Section-9
CPC unless specifically barred by law or
necessary
intendment.
Section-71
reproduced above supports the position of
law and is well supported by a decision of
the apex court reported in AIR 1969 SC 78
(Dhulabhai etc. v. State of M.P. and
another).

26. This Court may further note that
Section 73 and 74 of the Disaster
Management Act protect the State and its
agents or officers from any legal action for
anything done in good faith. The statutory
protection, however, does not render a suit
or proceeding non-maintainable for it may
be possible for the claimant to establish by
leading evidence that action or omission
was deliberate and not in good faith. This
Court may take note of the definition of
''good faith' as provided under Section-52
of Indian Penal Code as under:

"52. "Good faith".--Nothing is
said to be done or believed in "good faith"
which is done or believed without due care
and attention."

The negligence co-exists with bad
faith. The burden of proof shall lay heavily
on the claimants but it does not render the
suit or claim as non-maintainable.

27. The position of law is further
supported under an apex court judgement
reported in (1994) 6 SCC 205 (N.
Nagendra & Co. v. State of A.P.) wherein it
is held that the State cannot claim
sovereign immunity from compensation
due to negligence of its agents in cases
directly resulting in breach of Article 21 of
the Constitution of India. The decision
holds good until now.

28. Thus, we are of the considered
opinion that the field of compensation
beyond the scope of section 12 (iii) of the
Disaster Management Act, 2003 is well
protected as against negligence or things
not done in good faith irrespect of any
measure such as ex-gratia but in the present
case it is the claim of ex-gratia payment
which we are concerned with.

29. Now coming to the aspect as to
whether the victims named in the chart set
out hereinabove have died of Covid-19 or
otherwise. Sri Ashok Khare has taken us
through the apex court judgement passed in
9 All. Ajay Kumar & Anr. Vs. U.O.I. & Ors.
339
the case of Gaurav Kumar Bansal v.
Union of India and others. We find that
deaths having taken place in the hospitals
on account of Covid-19 fully stand the test
of certification. The argument that the
medical reports mentioning cardiac failure
or otherwise may not be attributed to
Covid-19 does not impress the Court for
the reason that Covid-19 is an infection that
may result to the mortality of a person
affecting any organ be it lungs or heart etc.
Once the admission of deceased persons
was on account of Covid-19, the resulting
cause being heart failure or dysfunction of
any other organ leading to death is
immaterial and would nevertheless be
treated as Covid-19 death. No other
argument
was
advanced
for
our
consideration, therefore, having given our
anxious consideration, we allow the claims
in
terms
of our observations
made
hereinabove.

27. As a result, all the writ petitions
except Writ-C No. 3276 of 2022 (Smt.
Khushboo v. State of U.P. and others) are
allowed and the opposite parties are
directed to release the ex-gratia payment to
the dependents entitled thereto within a
period of one month failing which the
claims so allowed shall be made good
inclusive of simple interest @ 9% p.m.
from the date of judgement upto the date of
actual payment.

The Writ-C No. 3276 of 2022
(Smt. Khushboo v. State of U.P. and others)
is accordingly dismissed.

28. Each of the petitioners, whose
claims are allowed shall be entitled to a
cost of Rs. 25000/- in each case.
----------
(2022) 9 ILRA 339
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.08.2022

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Writ C No. 43422 of 2018

Ajay Kumar & Anr. ...Petitioners
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Subhash Chandra Yadav

Counsel for the Respondents:
C.S.C., Ms. Akansha Sharma, Sri Pranjal
Mehrotra, Sri Rajnish Kumar Rai, Sri Manish
Goyal (A.A.G.)

A. Land Law - UP Revenue Code, 2006 -
Section 67-A - UP Revenue Code Rules,
2016 - Ss. 64 and 68 - Settlement of
Abadi site land - Maximum area required
to be settled is 200 Square meter -
Violation - Effect - Held, an area upto 200
square meters of land with structure
thereon
could
be
settled
with
the
petitioners under Section 67-A of the
Revenue Code, 2006 and not the entire
area of 0.0580 hectares (580 square
metes) - No right can be said to have
accrued to the petitioners in respect of
Plot No. 139M and 140M in excess of 200
square meters. (Para 19)
B. Doctrine of President - Exception - Per
incuriam - Earlier Writ order was passed
in ignorance of the provisions - Order falls
under the spectrum of per incuriam was
not followed. (Para 19)
C. Acquisition Law - Railways Act, 1989 -
Sections 20-A, 20-E & 20-F (2) - Lapse of
proceeding
-
Acquisition
for
special
railway project - Plot, in question was
included in the Notification u/s Section
20-A, not u/s 20-E of the Act - Effect -
Held, it can safely be concluded that the