This case is an example and a reflection of the way we treat our freedom fighters inasmuch that while we applaud their contributions to the fight for freedom, we deny them a pension, which, even if granted, amounts to a pittance and while many who apply are under financial distress, all without exception, wear it as a badge of honour and as a certificate of recognition of their efforts in the struggle of independence.
In the instant case, the respondent claiming to be a freedom fighter, applied for the grant of a freedom fighter's pension on 30 th December, 1996. This representation was rejected by the State Government on the ground that in the face of a Government order such an application had to be supported by a certificate of a co-prisoner indicating specifically that the applicant as well as the certifiers had undergone imprisonment in the same jail.
The Supreme Court held that two certificates on record of approved certifiers, was sufficient compliance with the Government order. It was held that the stand of the State Government based on the communication dated 7 th February, 1996 was, in fact, misplaced as this communication refers to the difficulty being faced by applicants for freedom fighter pension in producing co-prisoner certificates.
State of Tamil Nadu v. A. Manickam Pillai , C.A. No. 4400 of 2007; Decided on 27-1-2010 (SC) [Harjit Singh Bedi and T.S. Thakur, JJ.]
KIDNAPPING FOR RANSOM: Death Penalty
Section 364A, Indian Penal Code, had been introduced in the Penal Code by virtue of Amendment Act 42 of 1993. A plain reading of the Objects and Reasons which led to the amendment shows the concern of Parliament in dealing with kidnapping for ransom a crime which called for a deterrent punishment, even in a case where the kidnapping had not resulted in the death of the victim. The statistics further reveal that kidnapping for ransom has become a lucrative and thriving industry all over the country which must be dealt with, in the harshest possible manner and an obligation rests on courts as well.
In the instant case, a young boy of 16 years of age was kidnapped from school for ransom which would by itself attract the death penalty but he was murdered in the process. As observed, in this tragic scenario and in the drawing up of the balance sheet, the plight of the helpless victim, and the abject terror that he must have undergone while in the grip of his kidnappers, is often ignored.
Vikram Singh v. State of Punjab , Crl. App. Nos. 1396-97 of 2008; Decided on 25-1-2010 (SC) [Harjit Singh Bedi and J.M. Panchal, JJ.] [2010 (1) SCALE 633]
LABOUR LAWS: Social Welfare Legislations
The Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the Preamble of the Constitution of India and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people.
As observed, of late there has been a visible shift in the courts' approach in dealing with the cases involving the interpretation of social welfare legislations. An impression has been created that the constitutional courts are no longer sympathetic towards the plight of industrial and unorganized workers. In large number of cases, relief has been denied to the employees falling in the category of workmen, who are illegally retrenched from service by creating by-lanes and side-lanes in the jurisprudence developed by the Supreme Court in three decades. The stock plea raised by the public employer in such cases is that the initial employment/engagement of the workman employee was contrary to some or other statute or that reinstatement of the workman will put unbearable burden on the financial health of the establishment.
As held, the approach of the courts must be compatible with the constitutional philosophy of which the Directive Principles of State Policy constitute an integral part and justice due to the workman should not be denied by entertaining the specious and untenable grounds put forward by the employer-public or private.
Harjinder Singh v. Punjab State Warehousing Corpn , C.A. No. 587 of 2010 (Arising out of SLP (C) No. 6966/2009); Decided on 5-1-2010 (SC) [G.S. Singhvi and Asok Kumar Ganguly, JJ.]
ARBITRATION: Arbitration Clause in Will
Even if a Will has provided for reference of disputes to arbitration, it would be merely an expression of a wish by the testator that the disputes should be settled by arbitration and cannot be considered as an Arbitration agreement among the legatees. A unilateral declaration by a father that any future disputes among the sons should be settled by an arbitrator named by him, can by no stretch of imagination, be considered as an arbitration agreement among his children, as such of his children who become parties to a dispute. At best, such a declaration can be expression of a fond hope by a father that his children in the event of a dispute, should get the same settled by arbitration. It is for the children, if and when they become parties to a dispute, to decide whether they would heed to the advice of their father or not. Such a wish expressed in a declaration by a father, even if proved, cannot be construed as an agreement in writing between the parties to the dispute agreeing to refer their disputes to arbitration.
Vijay Kumar Sharma @ Manju v. Raghunandan Sharma @ Baburam , C.A. No. 89 of 2010 (Arising out of SLP (C) No. 20808 of 2008); Decided on 5-1-2010) [R.V. Raveendran and K.S. Radhakrishnan, JJ.]
INCOME- TAX: Power to Re-open Assessment
A short question raised very recently was, whether the concept of 'change of opinion' stands obliterated with effect from 1 st April, 1989, i.e. after substitution of Section 147 of the Income Tax Act, 1961 by Direct Tax Laws (Amendment) Act, 1987.
Prior to Direct Tax Laws (Amendment) Act, 1987, re-opening could be done under two conditions and fulfilment of the said conditions alone conferred jurisdiction on the Assessing Officer to make a back assessment, but in Section 147 of the Act (with effect from 1 st April, 1989), only one condition has remained, viz , that where the Assessing Officer has 'reason to believe' that income has escaped assessment, it confers jurisdiction to re-open the assessment. Therefore, post 1 st April, 1989, power to re-open is much wider. However, one needs to give a schematic interpretation to words 'reason to believe' failing which Section 147 would give arbitrary powers to the Assessing Officer to re-open assessments on the basis of 'mere change of opinion', which cannot be per se reason to re-open. Reasons must have a live link with the formation of the belief.
Commissioner of Income Tax, Delhi v. M/s Kelvinator India Ltd , C.A. Nos 2009-2011 of 2003 with C.A. No. 2520 of 2008; Decided on 18-1-2010 (SC) [S.H. Kapadia, Aftab Alam and Swatanter Kumar, JJ.]
RENT CONTROL- Deferment of Eviction Proceedings
A mere assertion by a tenant that he is in possession of premises in part performance of an agreement of sale, or the mere filing of a suit for a specific performance, by itself will not lead to deferment of the eviction proceedings. But where the defendant in an eviction proceeding under the Rent Act denies the relationship of landlord and tenant contending that he is not in possession as a tenant and produces and relies upon an agreement of sale in his favour which confirms delivery of possession in part performance, and a specific performance suit is pending and there is no lease deed, or payment of rent from the date of such agreement of sale or no acknowledgment of attornment of tenancy, eviction proceedings can be deferred. However, courts dealing with summary proceedings against tenants under Rent Acts for eviction, should be wary of defendants coming forward with defences of agreement of sale, lest that becomes a stock defence in such petitions. Unless the Court is satisfied prima facie that the agreement is genuine and defence is bona fide , it should not defer the proceedings for eviction under the Rent Acts.
Joseph Kantharaj v. Attharunnisa Begum S ., C.A. No. 282 of 2010 (Arising out of SLP (C) No. 2002/2008); Decided on 11-1-2010 (SC) [R.V. Raveendran and K.S. Radhakrishnan, JJ.]
LAND ACQUISITION: Release of Acquired Land
The Government can transfer the acquired land if it is satisfied that the same is not required for the purpose for which it was acquired or for any other public purpose. In exercise of power under Section 48B of the Land Acquisition Act, the Government can release the acquired land only till the same continues to vest in it and that too if it is satisfied that the acquired land is not needed for the purpose for which it was acquired or for any other public purpose. To put it differently, if the acquired land has already been transferred to other agency, the Government cannot exercise power under Section 48B of the Act and re-convey the same to the original owner if the same can be utilized for any public purpose other than the one for which it was acquired.
Tamil Nadu Housing Board v. L. Chandrasekaran , C.A. Nos. 3148-3149 of 2002; Decided on 29-1-2010 (SC) [G.S. Singhvi and Asok Kumar Ganguly, JJ.]
RITA ARYAN LL.M. (Medalist)