Gomathi Augustin v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 13TH DAY OF NOVEMBER 2020 / 22ND KARTHIKA, 1942** ## **WP(C).No.18050 OF 2020(S)** ## **PETITIONER:** **GOMATHI AUGUSTIN, AGED 42 YEARS, D/O. GANDHI, DEVIKULAM ESTATE FACTORY DIVISION, MUNNAR P.O. KERALA-685 612.** **BY ADV. SRI. ANOOP V.R.** ## **RESPONDENT:** **STATE OF KERALA,** **REPRESENTED BY THE REVENUE SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **BY SRI.P.NARAYANAN, SENIOR GOVT. PLEADER SRI. ARAVIND KUMAR BABU, SENIOR GOVT. PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C):18050/2020 2 ## **JUDGMENT** Dated this the 13[th] day of November, 2020 ## S. Manikumar, CJ Instant public interest writ petition is filed for a direction to the respondent – State of Kerala, to take immediate action for providing adequate amount of compensation or an equivalent package to the victims of Munnar Pettimudi landslide, not less than in value of the amount given to the victims of Karipur Aircraft clash. 2. Facts leading to the filing of instant writ petition are that the petitioner claims to be a Block Panchayat Member in Devikulam Block Panchayat. He is working for the welfare of the people of Munnar, especially for Tea Estate workers, who are most downtrodden. He is the founding leader of Pembilai Orumai, a trade union movement exclusively for women. 3. Petitioner has further stated that a landslide happened at 10.45 p.m., on August 6, at Pettimudi ward under Munnar Village Panchayat. Workers of Kannan Devan Hills Plantations company were living in Pettimudi. Rajamala includes Eravikulam National Park and the landslide was triggered from Shoal forest region in the national park. Rocks, slurry and sludge crashed down a distance of around 1 ½ kms to a patch of valley in Pettimudi, crushing the single-room house of estate workers that stood in two rows. Sheet roofed W.P.(C):18050/2020 3 quarters, 12 of them were rescued by residents of another settlement. So far 50 bodies have been recovered in the rescue operation. Only those, who were away from the site at that time, have survived. Nineteen school children have either died or are still missing. 4. Petitioner has further stated that an amount of Rs.5 lakhs was announced by the State Government as compensation to the victims when an amount of 10 lakhs was announced to the victims of Karipur flight crash, which happened on the same day. According to the petitioner, the victims of Karipur flight crash would get a comparatively huge amount as insurance also. In the case of the victims of landslide, there is no other way of financial help that they could depend on. Moreover, the Munnar landslide is a man-made disaster in which Government missionaries have their own role. In fact, the victims of the landslide deserve more. At least, they have equal amount's claim as that of flight crash victims. 5. Petitioner has further stated that the different compensation ordered for victims in two incidents on the very same dates is discriminatory. There is no rational nexus for such discrimination. The State has not taken any reasonable studies or stated any reason for granting different compensation to the citizens in the case of death. It required a standard guideline for granting compensation to the victims, who died or injured. Hence, the discriminatory W.P.(C):18050/2020 4 action of the State in granting compensation and also dereliction in granting adequate compensation to the victims, who died in the landslide, is violative of Articles 14 and 21 of the Constitution of India. Hence, the writ petition. ## 6. On 20[th] October, we passed the following order: “On behalf of the victims of the land slide in Munnar Pettimudy area in Idukki, instant Public Interest Litigation has been filed, for a mandamus, directing the State of Kerala represented by the Chief Secretary to Government, Thiruvananthapuram, to provide adequate compensation with a minimum of Rs.10,00,000/-, to the relatives of the victims who died in Munnar Pettimudy land slide, or in the alternative, direct the respondent to order any other equivalent package to the victims, which is not less than the value of the amount given to the victims of Karipur aircraft crash, within a time frame to be fixed by this Court. 2. On this day, when the matter came up for admission, based on the materials furnished by the District Collector, Mr. T. K. Aravinda Kumar Babu, learned Senior Government Pleader, submitted that after the land slide, on the directions of the Government, the District Collector, Idukki, has conducted a detailed study with a special team and submitted a report to the Government, wherein it is reported that six people have lost their property and home hold things, due to the mishap, and are surviving with physical as well as mental difficulties. Two other surviving persons have lost their residence and belongings in the land slide. According to the District Collector, they are eligible to be rehabilitated. District Collector in his instructions dated 14.10.2020 has also stated thus:- W.P.(C):18050/2020 5 “It is submitted that a massive landslide at Pettimudi, Munnar happened in the late hours of 06.08.2020 (Thursday). An array of four labour quarters (layams) under the ownership of Tata Tea at Pettimudi, located about 20 KM away from Munnar town, were completely washed away in the landslide. The source of landslide is estimated to be an area known as 'E Block' termed by the Forest Department, which is around 2.5 KM away from where the layams are located. There were 34 houses in these four estate layams which were completely ruined in the land slide along with another building functioned as the estate canteen. 82 people are affected by the disaster out of which 66 bodies were recovered so far. All these bodies were subjected to autopsy in a nearby clinic run by KDHP Company and released for burial. Twelve persons were rescued and four bodies are yet to be recovered. It is estimated that an area of around 20 acres of land has been washed away and the valley is filled up with the debris. The estate authorities provided an area in the estate itself for burying the dead bodies of the victims. The authorities in co-ordination with various departments continued the search operations till 31.8.2020 amidst the huge pile of debris fighting the extreme weather. The State Government has issued order vide No.G.O.(Rt) No.669/2020/DMD dated 14.08.2020, allowing Exgratia payment of Rs.5,00,000/- for the bereaved. It is submitted that the District Administration has deputed a special team to find out the relatives of the deceased and a detailed report was obtained vide dated 03/09/2020 in this regard. The District Administration takes all possible means for the speedy execution of the Government Order. It is also humbly submitted that in addition to the sanctioning of the exgratia payment of Rs.5,00,000/- State Government also proposes for the grant of land and houses to the legal heirs of bereaved families. The Kannan Devan Hills Plantation Pvt. Ltd. extended their willingness to help the beneficiaries for the construction of the houses. Govt. vide the order GO(MS) No.242/2020/Rev. Dated 09.10.2020 of the Revenue (A) Department, have issued order to give land to legal heirs of deceased. KDH Company agreed to give house building to them. W.P.(C):18050/2020 6 Government also assured that Govt. will bear all expenses related to the education to the children of deceased. Moreover Central Government announced financial assistance of 2 lakhs each and Tamil Nadu Government declared financial assistance of 3 lakhs each to the families. In addition to this KDH Company also announced 5 lakh each to the legal heirs of deceased. The District Administration identified a suitable place for rehabilitation at Kuttiyatr valley in KDH Village of Devikulam Taluk and directed Tahsildar Devikulam to initiate land assignment proceedings. Further steps in this line are in progress at present.” 3. In addition to the above, learned Senior Government Pleader submitted that it was also decided that five cents of land in Sy.No.1264 in Devikulam Taluk, KDH Village in Kattiyar Valley Kara, which was already earmarked for general purposes, shall be assigned to those 8 persons / families free of cost, as per the special powers vested with the Government under Rule 24 of Land Assignment Rules, 1964, and action in this regard is being initiated. 4. From the above it could be deduced that Government have issued orders in G. O. (Rt) No. 699/2020/DMD dated 14.08.2020, allowing _ex gratia_ payment of Rs.5,00,000/- for the aggrieved. Mr. Aravinda Kumar Babu, learned Senior Government Pleader, further submitted that out of the abovesaid _ex gratia_ payment, Rs.1,00,000/- is being paid from the State Fund and the balance of Rs.4,00,000/- has to be paid from the Kerala State Disaster Management Authority's fund. 5. Mr. Anoop V. R., learned counsel for the petitioner, submitted that so far an amount of Rs. 1,00,000/- alone has been received. 6. Mr. Aravinda Kumar Babu, learned Senior Government Pleader, is directed to ascertain whether the entire _ex gratia_ W.P.(C):18050/2020 7 amount of Rs.5,00,000/- has been paid to the legal representatives of the deceased. Learned Senior Government Pleader is also directed to file a statement with supporting documents regarding the steps taken to disburse the balance amount of Rs.4,00,000/-, if any, from the Kerala State Disaster Management Authority's fund. 7. Case of the petitioner that there is discrimination in the payment of compensation to the victims of Munnar Pettimudy land slide with that of the victims of Karipur aircraft crash, is misconceived for the reason that there is difference between _ex gratia_ and compensation. _Ex gratia_ in Latin is 'by favour' or 'out of goodwill'. Something has been done, _ex-gratia_ , it has been done voluntarily, out of kindness or grace. In law, _ex-gratia_ payment is a payment made without the giver recognising any liability or legal obligation. 8. That apart, let us consider what is meant by _ex gratia._ (i) Reference is drawn to **Stroud’s Judicial Dictionary of Words and Phrases,** Seventh Edition, wherein the word “Ex-Gratia” as defined in a decided case is extracted as follows:- “EX GRATIA. The words “ex gratia” in a promise to pay do not carry a necessary or even probable implication that the agreement is to be without legal effect. [ **Edwards v. Skyways** (1964 (1) W.L.R. 349)]” (ii) According to **Jowitt’s Dictionary of English Law** , Second Edition, “ex gratia” is defined as follows:- “Ex gratia (as of favour). In contra-distinction to “as of right”. As to the liability to tax of an ex gratia payment.” (iii) A Dictionary of **Latin Words and Phrases** , by James Morwood, defines ‘ex gratia’ as follows: “ex gratia done or given as a favour and not under any compulsion” W.P.(C):18050/2020 8 (iv) **Words and Phrases, Permanent Edition** , contains the following definition: ## “EX gratia payment: Where there is concurrency of coverage between ceding company’s policy and policy of reinsurance, the follow the settlements doctrine imposes upon insurer a contractual obligation to indemnify the ceding company for payments it makes pursuant to loss settlement under its own policy, provided that loss settlement is not fraudulent, collusive, or otherwise made in bad faith, and is not “ex gratia payment”, which is one that is made by one who recognizes no legal obligation to pay but who makes payment to avoid later expenses as in case of settlement by insurance company to avoid costs of suit.” ## (v) According to **Advanced Law Lexicon, Third Edition** , by P. Ramanatha Aiyar: ## ‘Ex gratia, By favour. Out of grace; as a matter of grace, favour, or indulgence: gratuitous. A term applied to anything accorded as a favour: as distinguished from that which may be demanded _ex debito_ as a matter of right. The words “ex gratia” in a promise to pay do not carry a necessary or even probable implication that the agreement is to be without legal effect. As a matter of grace or favour. Describing a payment made in thanks, such as a tip or golden handshake payment to a retiring employee. Most exgratia payments are tax free. Ex gratia payment. Payment made by one who recognizes no legal obligation to pay but who makes payment to avoid greater expense as in the case of a settlement by an insurance company to avoid costs of suit. A payment without legal consideration. In insurance, a payment is made to settle an issue (such as an insurance claim) but without admitting liability. ( _Insurance)_ Ex gratia pension. A pension paid by an employer although there is no binding commitment to do so. (Investment)” W.P.(C):18050/2020 9 ## (vi) According to **Webster’s Third New International Dictionary** , "ex gratia - as a favour: not compelled by legal right (ex gratia pension payments) “ (vii) **Concise Oxford English Dictionary** defines ‘ex gratia’ as follows:- “ex gratia - (with reference to payment) done from a sense of moral obligation rather than because of any legal requirement.” (viii) According to **Black’s Law Dictionary, Sixth Edition** , “ex gratia” is, “Ex gratia. Out of grace: as a matter of grace, favour of indulgence: gratuitous. A term applied to anything accorded as a favour, as distinguished from that which may be demanded _ex debito_ , as a matter of right. Ex gratia payment. Payment made by one who recognises no legal obligation to pay but who makes payment to avoid greater expense as in the case of a settlement by an insurance company to avoid costs of suit. A payment without legal consideration.” (ix) In **Kalinga Tubes Ltd. v. Commissioner of Income Tax, Central and Ors.** reported in (1974) 96 ITR 20 (Orissa), a Hon'ble Division Bench of Orissa High Court observed thus: “14. The word "ex gratia" means "act of grace". As "bonus" had not been statutorily prescribed, the management was of the opinion that the payment was not compulsory under any statute and as it was paid to keep the workers contented, the payment of bonus was an "act of grace". Thus, the entry in the books of account showing the payment as "ex gratia" does not negative its character being bonus as it was stated in the order issued by the managing director on January 1, 1959.” (x) In **Sudesh Dogra v. Union of India and Others** [(2014) 6 SCC 486], the Hon'ble Supreme Court held thus: “22...........Ex-gratia is an act of gratis and has no connection with the liability of the State in law. The very nature of the relief and its dispensation by the State W.P.(C):18050/2020 10 cannot be governed by directions in the nature of mandamus unless of course there is an apparent discrimination in the manner of grant of such relief. It is not the case of the Petitioner that they have been so discriminated...........” 9. If, for any reason, the legal representatives of the deceased or injured, or those, who lost their belongings, as the case may be, are not satisfied with the payment of _ex gratia_ by the Government, it is always open to them to move the appropriate court for compensation, by adducing evidence as regards loss of life, value of the house or other movables alleged to have been lost or damaged in the land slide. 10. Mr. Aravinda Kumar Babu, learned Senior Government Pleader, is directed to file a statement with documents as directed, by 27.10.2020. Post on 28.10.2020. ## 7. Subsequently, on 12.11.2020, we ordered as under: “On 20.10.2020, we directed Mr. T. K. Aravinda Kumar Babu, learned Senior Government Pleader to ascertain as to whether Rs.4,00,000/- to be paid under the Disaster Management Act, 2005, has been paid or not. Reverting, on this day when the matter came up for further hearing, on instructions, Mr. T. K. Aravinda Kumar Babu, learned Senior Government Pleader submitted that the District Collector, Idukki has informed that ex-gratia payment of Rs. 5,00,000/- allowed to the legal representatives of the deceased can be disbursed only after obtaining valid legal heir-ship certificate. Accordingly, notification No. 42 has been published in the gazette on 27.10.2020, requesting submission of legal heirship certificate, within one month. Objections are also W.P.(C):18050/2020 11 permitted to be submitted within such time. Learned Senior Government Pleader further submitted that 8 persons have been allotted lands. Post on 13.11.2020.” 8. From the above, it could be deduced that the Government have taken appropriate steps to mitigate hardships of the families, who have lost their lives and properties. Gazette publication was made on 27.10.2020, requesting furnishing of legal heir-ship certificate, within one month and objections were also ordered to be submitted. 9. As per the submission of the learned Senior Government Pleader, eight persons have been allotted lands. Having regard to the plight of the victims, we sincerely hope that Kannan Devan Hills Plantations company would honour the commitment. No sooner legal heir-ship certificate is produced, on scrutiny and on satisfaction of the requirements, ex gratia amount of Rs.5 lakhs be given to the legal representatives of the deceased. 10. The contention of the petitioner that there is discrimination between the victims of Karipur Aircraft crash and the victims of Munnar Pettimudy landslide cannot be countenanced. Notwithstanding ex gratia payment of Rs.5 lakhs to the families of the bereaved and the willingness of Kannan Devan Hill Plantation Private Ltd., to help the beneficiaries for the construction of houses, it is always open to the legal representatives of the W.P.(C):18050/2020 12 deceased or the injured, or those who lost their properties, to seek for compensation before a Civil Court, in accordance with law. With the above, placing on record the submissions of the Government, this Writ Petition is disposed of. **Sd/S.MANIKUMAR CHIEF JUSTICE** **Sd/SHAJI P.CHALY JUDGE** krj W.P.(C):18050/2020 13 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 COPY OF THE MATHRUBHOOMI ENGLISH ONLINE DATED 09TH AUGUST 2020.** **EXHIBIT P2 COPY OF THE HINDU ONLINE DATED 09TH AUGUST 2020. EXHIBIT P3 COPY OF THE GOVERNMENT ORDER DATED 17.8.2020** ## **RESPONDENT'S EXHIBITS:- NIL** //TRUE COPY/ P.A. TO C.J.