Union of India & Anr. vs M/s. Ganpati Dealcom Pvt. Ltd.

Judicial Review– Law with respect to testing the unconstitutionality of a statutory instrument – Held: Constitutional Courts can test constitutionality of legislative instruments (statute and delegated legislations)both on procedure as well as substantive nature of these instruments – The test should be based on a combined reading of Articles 14, 19 and 21 of the Constitution – Constitution of India – Articles 14, 19, 21.

Doctrines/Principles – Doctrine of manifest arbitrariness– Discussed.

Interpretation of Statutes – Law declared unconstitutional – Effect of – Held: Such a declaration would render the law not to exist in the law books since its inception – It is only a limited exception under Constitutional law, or when substantial actions have been undertaken under such unconstitutional laws that going back to the original position would be next to impossible – In those cases alone, would this Court take recourse to the concept of ‘prospective overruling’.

Constitution of India –Retroactive/retrospective legislations – Legislature’s power to enact – Held: Legislature has power to enact retroactive/retrospective civil legislations under the Constitution – However, Article 20(1) mandates that no law mandating a punitive provision can be enacted retrospectively – A punitive provision cannot be couched as a civil provision to by-pass the mandate under Article 20(1) of the Constitution which follows the settled legal principle that “what cannot be done directly, cannot be done indirectly”.

Words and Phrases– “Forfeiture”, “Benami”, “Benami transaction”, “Benamidar/ostensible owner”– Discussed.

Disposing of the appeal, the Court

HELD: 1. Reading Section 2(a) along with Section 3 makes one thing clear – the criminal provision envisaged under the aforesaid provisions does not expressly contemplate mens rea. Under the Indian jurisprudence, the law on the subject is fairly well-settled. It has been subjected to the judicial scrutiny of this Court on several occasions. It does not call for a detailed discussion and is enough to restate the principles. Mens rea is an essential ingredient of a criminal offence. Doubtless, a statute may exclude the element of mens rea, but it is a sound rule of construction adopted in England – and also accepted in India – to construe a statutory provision creating an offence in conformity with common law rather than against it, unless the statute expressly or by necessary implication excluded mens rea. The mere fact that the object of the statute is to promote welfare activities or to eradicate a grave social evil which by itself is not decisive of the question as to whether the element of a guilty mind is excluded from the ingredients of an offence. Mens rea by necessary implication may be excluded from a statute only where it is absolutely clear that implementation of the object of the statute would otherwise be defeated. The Language of Section 2(a) coupled with Section 3, completely ignores the aspect of mens rea, as it intends to criminalize the very act of one person paying consideration for acquisition of property for another person. The 1988 law was envisaged on the touchstone of strict liability. Such strict statutory formulation under Section 2(a) read with Section

3 had left loose ends in the 1988 Act. In this light, the prosecution would only have to prove only that consideration was paid or consideration was provided by one person for another person and nothing more. In all the judicial precedents, this Court has had the occasion to examine this legislation on the civil side and never on the criminal side, which would bear a higher standards. Conflation of the ingredients under Section 3(1) and (2) with those of Section 4, to forcefully implied mens rea, cannot be accepted. [Para 14.10-14.12][355-D-G; 356-B-C]

Nathulal v. State of Madhya Pradesh, AIR 1966 SC 43; Mithilesh Kumari v. Prem Behari Khare, (1989) 2 SCC 95 : [1989] 1 SCR 621; R. Rajagopal Reddy v. Padmini Chandrasekharan, (1995) 2 SCC 630 : [1995]

1 SCR 715 – referred to.

2. The law with respect to testing the unconstitutionality of a statutory instrument can be summarized as under:

a. Constitutional Courts can test constitutionality of legislative instruments (statute and delegated legislations); b. The Courts are empowered to test both on procedure as well as substantive nature of these instruments.

c. The test should be based on a combined reading of Articles 14, 19 and 21 of the Constitution.

One of the offshoots of this test under Part III of the Constitution is the development of the doctrine of manifest arbitrariness. [Paras 15.7, 15.8]

Shayara Bano v. Union of India, (2017) 9 SCC 1 : [2017] 9 SCR 797; Joseph Shine v. Union of India, (2019)

3 SCC 39: [2018] 11 SCR 765; Hindustan Construction Co. Ltd v. Union of India, (2020) 17 SCC 324 – relied on.

3.1 Coming back to the 1988 Act, the two provisions with which the Court is concerned are Sections 3 and 5 of 1988 Act. The enactment was merely a shell, lacking the substance that a criminal legislation requires for being sustained. The reasons for the same are following. First, the absence of mens rea creates a harsh provision having strict liability. Such an approach was frowned upon by the 57th Law Commission Report as concerns of tax evasion or sham transactions in order to avoid payment to creditors were adequately addressed by the existing provisions of law. Even the 130th Law Commission Report did not expressly rule out the inclusion of mens rea. The legislative move to ignore earlier Law Commission Reports without there being a principle identified to do away with the aspect of mens rea should be a contributory factor in analysing the constitutionality of the aforesaid criminal provision under the 1988 Act. Further, under the amended 2016 Act, the aspect of mens rea, is brought back through Section 53. Such resurrection clearly indicates that doing away of the mens rea aspect, was without any rhyme or reason, and ended up creating an unusually harsh enactment. Second, ignoring the essential ingredient of beneficial ownership exercised by the real owner contributes to making the law even more stringent and disproportionate with respect to benami transactions that are tripartite in nature. The Court cannot forcefully read the ingredients developed through judicial pronouncements or under Section 4 (having civil consequence) into the definition provided under Sections 2 and 3 (espousing criminal consequences), to save the enactment from unconstitutionality. Such a reading would violate the express language of Section 2(a), of excluding one ingredient from the definition of ‘benami transaction’, and would suffer from the vice of judicial transgression. In removing such an essential ingredient, the legislature did not identify any reason or principle, which made the entire provision of Section 3 susceptible to arbitrariness. Interestingly, for tripartite benami transactions, the 2016 Act brings back this ingredient through Section 2(9)(A)(b). In this context, it may be stated that it is a simple requirement under Article 20(1) that a law needs to be clear and not vague. It should not have incurable gaps which are yet to be legislated/filled in by judicial process. Third, it is fairly admitted by the learned ASG appearing for the Union of India, that the criminal provision was never utilized as there was a significant hiatus in enabling the functioning of such a provision. Fourth, reading Section 2(a) with Section 3(1) would have created overly broad laws susceptible to be challenged on the grounds of manifest arbitrariness. If this Court reads criminal provisions of the Benami Act to have had force since 1988, then the following deleterious consequences would ensue:

(i.) Section 187C of the Companies Act, 1956 assured protection to nominal and beneficial holding of shares if the prescribed declaration duly made are at serious risk. (ii.) Benami cooking gas connections which have been regularized from time to time are at risk.

(iii.) Housing colonies and benami allotments of DDA flats which have been regularised from time to time are at risk. The criminal provision under Section 3(1) of the 1988 Act has serious lacunae which could not have been cured by judicial forums, even through some form of harmonious interpretation. A conclusion contrary to the above would make the aforesaid law suspect to being overly oppressive, fanciful and manifestly arbitrary, thereby violating the ‘substantive due process’ requirement of the Constitution. [Paras 15.11-15.17][366-E-H; 367-A-H; 368-A-B]

3.2 Coming to Section 5 of the 1988 Act, it must be noted that the acquisition proceedings contemplated under the earlier Act were in rem proceedings against benami property. Jurisprudentially, such in rem proceedings transfer the guilt from the person who utilized a property which is a general harm to the society, to the property itself. When such proceedings are contemplated under law, there need to be adequate safeguards built into the provisions, without which the law would be susceptible to challenge under Article 14 of the Constitution. Coming to Section 5 of the 1988 Act, it was conceived as a half-baked provision which did not provide the following and rather left the same to be prescribed through a delegated legislation:

(i) Whether the proceedings under Section 5 were independent or dependant on successful prosecution?

(ii) The standard of proof required to establish benami transaction in terms of Section 5.

(iii) Mechanism for providing opportunity for a person to establish his defence.

(iv) No ‘defence of innocent owner’ was provided to save legitimate innocent buyers.

(v) No adjudicatory mechanism was provided for.

(vi) No provision was included to determine vesting of acquired property.

(vii) No provision to identify or trace benami properties.

(viii) Condemnation of property cannot include the power of tracing, which needs an express provision.

Such delegation of power to the Authority was squarely excessive and arbitrary as it stood. From the aforesaid, the Union’s stand that the 2016 Act was merely procedural, cannot stand scrutiny. In any case, such an inconclusive law, which left the essential features to be prescribed through delegation, can never be countenanced in law to be valid under Part III of the Constitution. The gaps left in the 1988 Act were not merely procedural, rather the same were essential and substantive. In the absence of such substantive provisions, the omissions create a law which is fanciful and oppressive at the same time. Such an overbroad provision was manifestly arbitrary as the open texture of the law did not have sufficient safeguards to be proportionate. [Paras 15.18-15.20][368-B-H; 369-A-B]

3.3 When a Court declares a law as unconstitutional, the effect of the same is that such a declaration would render the law not to exist in the law books since its inception. It is only a limited exception under Constitutional law, or when substantial actions have been undertaken under such unconstitutional laws that going back to the original position would be next to impossible. In those cases alone, would this Court take recourse to the concept of ‘prospective overruling’. Section 3 (criminal provision) read with Section 2(a) and Section 5 (confiscation proceedings) of the 1988 Act are overly broad, disproportionately harsh, and operate without adequate safeguards in place. Such provisions were still-born law and never utilized in the first place. In this light, this Court finds that Sections 3 and 5 of the 1988 Act were unconstitutional from their inception. It is made abundantly clear that the aforesaid discussion does not affect the civil consequences contemplated under Section 4 of the 1988 Act, or any other provisions. [Paras 15.21-15.23][369-C-E]

3.4 The discussion can be summarized as: (a) Section 3(1) of 1988 Act is vague and arbitrary. (b) Section 3(1) created an unduly harsh law against settled principles and Law Commission recommendations. (c) Section 5 of 1988 Act, the provision relating to civil forfeiture, was manifestly arbitrary. (d) Both provisions were unworkable and as a matter of fact, were never implemented. Having arrived at the aforesaid conclusions that Sections 3 and 5 were unconstitutional under the 1988 Act, it would mean that the 2016 amendments were, in effect, creating new provisions and new offences. Therefore, there was no question of retroactive application of the 2016 Act. As for the offence under Section 3(1) for those transactions that were entered into between 05.09.1988 to 31.10.2016, the law cannot retroactively invigorate a stillborn criminal offence. As per the concession made by the Union of India and a fair reading of Section 53 of the 2016 Act, the offence under the aforesaid provision is prospective, and only applied to those transactions that were entered into after the amendment came into force, viz., 1.11.2016. Any contrary interpretation of Section 3 of the 1988 Act would be violative of Article 20(1) of the Constitution. [Paras 17.2-17.4][375-B-F]

T. Barai v. Henry Ah Hoe, (1983) 1 SCC 177 : [1983] 1 SCR 905 – relied on.

3.5 In the case at hand, the 2016 Act containing the criminal provisions is applicable only prospectively, as the relevant Sections of the pre-amendment 1988 Act containing the penal provision, have been declared as unconstitutional. Therefore, the question of construction of the 2016 Act as retroactive qua the penal provisions under Sections 3 or 53, does not arise. The continued presence of an unconstitutional law on the statute book, or the claim that such law was not challenged before Constitutional Courts, does not prevent this Court from holding that such unconstitutional laws cannot enure to the benefit of or be utilized to retroactively amend laws to cure existing constitutional defects. If such curing is allowed, then Article 20(1) of the Constitution would be rendered nugatory. Although it has been held held that Section 5 of the 1988 Act was unconstitutional for being manifestly arbitrary, however such holding is of no consequence if this Court comes to the conclusion that confiscation under Section 5 of 2016 Act read with Chapter IV, was civil in nature and is not punitive. It is well settled that the legislature has power to enact retroactive/retrospective civil legislations under the Constitution. However, Article 20(1) mandates that no law mandating a punitive provision can be enacted retrospectively. Further, a punitive provision cannot be couched as a civil provision to by-pass the mandate under Article 20(1) of the Constitution which follows the settled legal principle that “what cannot be done directly, cannot be done indirectly”. [Paras 17.6, 17.7, 17.9, 17.10][376-H; 377-A-B, E-F]

3.6 Therefore, the immediate question which arises for consideration is whether the retroactive confiscation provided under Section 5 read with Chapter IV of 2016 Act is punitive or not? Acquisition under the earlier 1988 Act as well as confiscation under the 2016 Act are said to have been enacted on the reasoning that the property emanating from the benami transaction also gets tainted. The substantive difference between the acquisition provision under the earlier enactment and the confiscation provision under the 2016 Act is that proceeds of benami transactions have been made traceable under the 2016 Act. Before the other provisions are analysed, it is necessary to give a brief introduction to the concept of civil forfeiture in India, as the same was argued by the learned ASG. Under Admiralty jurisdiction, the concerned Admiralty Courts had the jurisdiction to forfeit vessels under its civil jurisdiction in lieu of any maritime claim. Same was the law across various common law jurisdictions, such as the United States of America and the United Kingdom. Forfeiture occurs in various types, few of which are found in India. Broadly, forfeitures can be categorized as civil and criminal. On the civil side, there can be in rem or in personam forfeitures. Punitive forfeitures under the criminal law are in personam. Criminal forfeitures usually take place at the conclusion of a trial, when the guilt of the accused is established. Standards of evidentiary requirement differ greatly between civil and criminal forfeiture. The historic origin of in rem civil forfeiture in common law jurisdictions was earlier mostly restricted to trans-national crimes. These early laws mandated that the property was subject to forfeiture because it was the instrument by which the offence was committed, and it was necessary to confiscate such property to remove it from circulation. However, the Twentieth century saw expansion of forfeiture laws into a wide array of crimes. The modern forfeiture laws not only allow forfeiture of property used to facilitate the crime, but cover the proceeds of the offence as well. In the Supreme Court of the United States, constitutional challenges laid to such civil forfeiture laws have been dismissed as they were usually attributed to historic prevalence of such forfeiture laws. However, such historic reasons of its existence cannot justify continued expansion of civil forfeiture laws. [Paras 17.11-17.16][377-G; 378-B-H]

Leonard v. Texas, 137 S. Ct. 847, 847-48 (2017); Engel v The Netherlands (No.1), [1976] 1 EHRR 647,

Kennedy v Mendoza-Martinez, 372 US 144 (1963) – referred to.

3.7 In Vijay Madanlal Choudary & Ors v. Union of India, SLP (Civ.) No. 4634 of 2014 and others, this Court dealt with confiscation proceedings under Section 8 of the Prevention of Money Laundering Act, 2002 (“PMLA”) and limited the application of Section 8(4) of PMLA concerning interim possession by authority before conclusion of final trial to exceptional cases. The Court distinguished the earlier cases in view of the unique scheme under the impugned legislation therein. Having perused the said judgment, this Court is of the opinion that the aforesaid ratio requires further expounding in an appropriate case, without which, much scope is left for arbitrary application. [Para 17.27][384-E-G]

Vijay Madanlal Choudary & Ors v. Union of India SLP (Civ.) No. 4634 of 2014 and others – referred to.

3.8 The Courts have read down the provisions of civil forfeiture to be dependent on the underlying criminal prosecution to temper the harsh consequences envisaged under such provisions. No doubt, such reading down was mandated to ameliorate harsh consequences of confiscatory laws which otherwise would have allowed the State agencies to take over the property without seriously pursuing the criminal prosecutions. At this stage, it can only be recommended that the utility of independent provisions of forfeiture, distinct from criminal prosecution, needs to be utilised in a proportional manner, looking at the gravity of the offence. Few examples which may pass the muster of proportionality for having such stringent civil forfeiture, may relate to crimes involving terrorist activities, drug cartels or organised criminal activities. The application of such a provision to numerous other offences which are not of such grave severity, would be of serious risk of being disproportionate, if procedures independent of criminal prosecution are prescribed. The proportionality of separate confiscation procedure prescribed under the 2016 Act, has not been argued herein. Accordingly, the aforesaid question of law is left open. Under the IPC, forfeiture is recommended to be a form of punishment under Section 53. Accordingly, the Code of Criminal Procedure, 1976 provides for a mechanism for interim custody and forfeiture at the conclusion of trial under Section 451 of the Cr.P.C. (in personam forfeiture). Sections 451, 452 under the Cr.P.C. have inbuilt safeguards of in personam criminal forfeiture, wherein confiscation occurs at the end of the trial. Under these provisions, confiscation is to be determined at an evidential standard of ‘beyond reasonable doubt’ and are dependent on the result of the criminal trial. [Para 17.28, 17.29][384-G-H; 385-A-D; 386-B]

State of West Bengal v. S. K. Gosh, AIR 1963 SC 255 : [1963] SCR 111; Divisional Forest Officer v. G. V. Sudhakar Rao, (1985) 4 SCC 573 : [1985] 3 Suppl. SCR 680; State of Madhya Pradesh v. Kallo Bai, (2017)

14 SCC 502 ; Yogendra Kumar Jaiswal v. State of Bihar, (2016) 3 SCC 183 : [2015] 14 SCR 1037; Abdul Vahab v. State of Madhya Pradesh, (2022) SCC Online SC

262 – referred to.

3.9 Coming to the Benami Act post the Amendment, the interplay of Sections 27(3), (5) and 67 of the 2016 Act creates a confiscation procedure which is distinct from the procedure contemplated under the CrPC or any other enactment till now in India. Such a change of standards cannot be merely termed as procedural. Characterization of the confiscation proceedings under Chapter IV of the 2016 Act as Civil may therefore not be appropriate. There is an implicit recognition of the forfeiture being a punitive sanction, as the Officer is mandated to build a case against the accused for such confiscation, wherein the presumption of innocence is upheld structurally. Being a punitive provision, it is trite that one integrates the ‘presumption of innocence’ within the Chapter as the same forms a part of the fundamental right. Additionally, the 2016 Act now condemns not only those transactions which were traditionally denominated as benami, rather a new class of fictitious and sham transactions are also covered under the same. In this regard, it may be noticed that the intention of the legislature is to condemn such property and there is an implicit effort by the Parliament to take into consideration the fact that such transactions are often acquired from ill-gotten wealth. These proceedings cannot be equated as enforcing civil obligations as, for example, correcting deficiencies in the title. It goes further and the taint attaches to the proceeds as well. [Paras 17.30-17.32][386-C-G]

3.10 In view of the above discussion, it is manifest that the 2016 Act contemplates an in-rem forfeiture, wherein the taint of entering into such a benami transaction is transposed to the asset itself and the same becomes liable to confiscation. At the cost of repetition, it may be noted that the taint of benami transactions is not restricted to the person who is entering into the aforesaid transaction, rather, it attaches itself to the property perpetually and extends itself to all proceeds arising from such a property, unless the defence of innocent ownership is established under Section 27(2) of the 2016 Act. When such a taint is being created not on the individual, but on the property itself, a retroactive law would characterize itself as punitive for condemning the proceeds of sale which may also involve legitimate means of addition of wealth. Jurisprudentially, a law may enable forfeiture of property by peculiar reason of its circumstances, of it being dangerous to the community by reasons of any form or position that it assumes. In such cases, forfeiture is not deemed to be punishment inflicted on its owner. By contrast, if the law provides that the Government shall forfeit a property ‘A’ for, (1) what was carried on in property ‘B’, or (2) what the owner does in a matter not connected with property ‘A’ or (3) a bare intent which does not necessarily relate to the conduct in property ‘A’, in such cases, forfeiture is punishment without any exception. In this case, the property may not be inherently dangerous or denigrate any standard of morality. It is just the condemnation of the method of transfer and holding, which was once a recognized form of property holding in India. In such a case, the in rem civil proceeding utilized retroactively, would characterize itself as penal. In the case at hand, the authority that initiates such confiscation, is granted extensive powers of discovery, inspection, compelling attendance, compelling production of documents. They are further empowered to take the assistance of police officers, custom officers, income tax officers and other relevant officers for furnishing information. It is also pertinent to note that any person who fails to furnish information, is subjected to a penalty of Rs.25,000/- (Rupees Twenty-Five Thousand) under Section 54(A). It is also necessary to note that a person who supplies false information before any authority, is subjected to rigorous imprisonment of upto 5 years under Section 54 of the 2016 Act. This Court is aware of the fact that the ‘Right to Property’ is not a fundamental right, rather it is a constitutional right that can be abridged by law. However, this Court is not concerned with the constitutionality of such a measure, wherein such considerations have to be balanced. Rather, the focus is only on the characterization of retroactive confiscation, which in these facts and circumstances, are punitive. In view of the fact that this Court has already held that the criminal provisions under the 1988 Act were arbitrary and incapable of application, the law through the 2016 amendment could not retroactively apply for confiscation of those transactions entered into between 05.09.1988 to 31.10.2016 as the same would tantamount to punitive punishment, in the absence of any other form of punishment. It is in this unique circumstance that confiscation contemplated under the period between 05.09.1988 and 31.10.2016 would characterise itself as punitive, if such confiscation is allowed retroactively. Usually, when confiscation is enforced retroactively, the logical reason for accepting such an action would be that the continuation of such a property or instrument, would be dangerous for the community to be left free in circulation. [Paras 17.33-17.37][387-A-H; 388-A-D] In R (on the appln of the Director of the Assets Recovery Agency) v Jia Jin He and Dan Dan Chen, [2004] EWHC Admin 3021 – referred to.

3.11 Coming to the present enactment, history points to a different story wherein benami transactions were an accepted form of holding in our country. In fact, the Privy Council had, at one point of time, praised the sui generis evolution of the doctrine of trust in the Indian law. The response by the Government and the Law Commission to curb benami transactions was also not sufficient as it was conceded before this Court that Sections 3 and 5 of the 1988 Act in reality, dehors the legality, remained only on paper and were never implemented on ground. Any attempt by the legislature to impose such restrictions retroactively would no doubt be susceptible to prohibitions under Article 20(1) of the Constitution. Looked at from a different angle, continuation of only the civil provisions under Section 4, etc., would mean that the legislative intention was to ensure that the ostensible owner would continue to have full ownership over the property, without allowing the real owner to interfere with the rights of benamidar. If that be the case, then without effective any enforcement proceedings for a long span of time, the rights that have crystallized since 1988, would be in jeopardy. Such implied intrusion into the right to property cannot be permitted to operate retroactively, as that would be unduly harsh and arbitrary. [Paras 17.38, 17.39][389-A-D]

3.12 In view of the above discussion, it is held: a) Section 3(2) of the unamended 1988 Act is declared as unconstitutional for being manifestly arbitrary. Accordingly, Section 3(2) of the 2016 Act is also unconstitutional as it is violative of Article 20(1) of the Constitution. b) In rem forfeiture provision under Section

5 of the unamended Act of 1988, prior to the 2016 Amendment Act, was unconstitutional for being manifestly arbitrary. c) The 2016 Amendment Act was not merely procedural, rather, prescribed substantive provisions. d) In rem forfeiture provision under Section 5 of the 2016 Act, being punitive in nature, can only be applied prospectively and not retroactively. e) Concerned authorities cannot initiate or continue criminal prosecution or confiscation proceedings for transactions entered into prior to the coming into force of the 2016 Act, viz., 1.11.2016. As a consequence of the above declaration, all such prosecutions or confiscation proceedings shall stand quashed. f) As this Court is not concerned with the constitutionality of such independent forfeiture proceedings contemplated under the 2016 Amendment Act on the other grounds, the aforesaid questions are left open to be adjudicated in appropriate proceedings. [Para 18.1][389-E-H; 390-A-B]

A.K Gopalan v. State of Madras AIR 1950 SC 27 : [1950] SCR 88; Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : [1978] 2 SCR 621; Sunil Batra v. Delhi Administration (1978) 4 SCC 494 : [1979] 1 SCR 392; K. Puttaswamy v. Union of India (2017) 10 SCC 1 : [2017] 10 SCR 569 – followed.

Niharika Jain v. Union of India [S.B.C.W.P. No. 2915/2019]; Joseph Isharat v. Mrs. Rozy Nishikant Gaikwad [S.A. No. 749/2015]; Rao Shiv Bahadur Singh vs. State of Vindhya Pradesh, AIR 1953 SC 394 : [1953] SCR 1188; Mangathai Ammal v. Rajeswari (2020) 17 SCC 496; Commissioner of Income Tax (Central)-I New Delhi v. Vatika Township Pvt. Ltd (2015) 1 SCC 1 : [2014] 12 SCR 1037; Sree Meenakshi Mills Ltd. v. Commissioner of Income Tax, Madras AIR 1957 SC 49 : [1956] SCR 691; Thakur Bhim Singh v. Thakur Kan Singh AIR 1980 SC 727 : [1980] 2 SCR 628; Punjab Province v. Daulat Singh AIR (29) 1942 FC 38; Jaydayal Poddar v. Bibi Hazra AIR 1974 SC 171: [1974] 2 SCR 90; Murlidhar Narayandas v. Paramanand Luchmandas, AIR 1932 Bom. 190; Radhakishan Brijlal v. Union of India, AIR 1959 Bom. 102 (V46 C40); Gur Prasad v. Hansraj AIR (33) 1946 Oudh. 144; Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225 : [1973] Suppl. SCR 1; Narendra Singh v. State of Madhya Pradesh (2004)

10 SCC 699 : [2004] 3 SCR 1148 – referred to.