Allahabad High Court
Indrawati Gupta vs State Of U.P. Thru. Addl. Chief ... on 17 February, 2023
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 4
Case :- WRIT - A No. - 25311 of 2021
Petitioner :- Indrawati Gupta
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Panchayati Raj And Ors.
Counsel for Petitioner :- Manjeet Singh,Babu Ram Shukla
Counsel for Respondent :- C.S.C.,Rohit Tripathi
Hon'ble Vivek Chaudhary,J.
Heard learned counsel for the petitioner and learned counsel for the respondents.
Present writ petition is filed by the petitioner challenging the order dated 22.7.2021 passed by respondent no.5 whereby application of the petitioner was rejected on the ground that Sohan Lal Gupta, husband of the petitioner, died after 30 days from the election duty and order dated 24.8.2021 whereby application of the petitioner for payment of ex-gratia amount was rejected as well as Government Order dated 1.6.2021 so far as it relates to time limit of death within 30 days from the date of election duty. The petitioner also prays that respondents may be directed to make payment of ex-gratia amount of Rs.30,00,000/- to the petitioner.
Learned counsel for the petitioner submits that similar controversy has already been adjudicated by this Court by means of judgment and order dated 25.7.2022 passed in Writ-C No.28249 of 2021 and other connected matters, wherein the legality of Clause-12 of the Government Order dated 1.6.2021, has been dealt with in detail by a Division Bench of this Court after taking into consideration various judgments of the Supreme Court. Relevant portion of the said judgment reads:
"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 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 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."
Since grievance of the petitioner in the present petition is similar to one which has already been adjudicated by a Division Bench of this Court in the aforesaid case, the benefit of the aforesaid judgment and order dated 25.7.2022 shall also be made available to the present petitioner in the same terms.
Accordingly, the writ petition is allowed in terms of the observation made in the judgment and order dated 25.7.2022 passed in Writ-C No.28249 of 2021, and the impugned orders dated 22.7.2021 and 24.8.2021 are set aside. Respondents are directed to release the ex-gratia payment to the dependents entitled thereto within a period of one month failing which the claim so allowed shall be made good inclusive of simple interest @ 9% p.m. from the date of order upto the date of actual payment.
.
[Vivek Chaudhary,J.]
Order Date :- 17.2.2023
Sachin
