judgement:
Appeals Nos.
635 to 641 of 1957.
Appeals from the judgment and decree dated September 8, 1954, of the Punjab High Court in Regular First Appeals Nos.
42, 43, 44, 45, 46, 47 and 48 of 1949.
R. Gopalakrishnan, T. M. Sen and R. H. Dhebar, for the appellants.
Darya Dutt Chawla, for the respondents.
May 1.
The Judgment of the Court was delivered by RAGHUBAR DAYAL, J.
Civil Appeal No. 635 of 1957 is an appeal, by certificate, and raises the question regarding the effect of the abatement of the appeal, by the State of Punjab, against Labhu Ram, one of the respondents, on the State appeal against Nathu Ram, co respondent.
Civil Appeals Nos.
636 to 641 of 1957 also raise the same question between the same parties.
The facts leading to the appeal are that the Punjab Government acquired on lease certain parcels of land belonging to Labhu Rain and Nathu Ram, for different military purposes, under the Defence of India Act, 81 638 1939 (XXXV of 1939).
Labhu Ram and Nathu Ram, brothers, refused to accept the compensation offered to them by the Collector and applied to the Punjab Government, through the Collector, under r. 6 of the Punjab Land Acquisition (Defence of India) Rules, 1943, hereinafter called the Rules, as amended by the Notification of the Punjab Government No. 1444 HM44/19124, dated 10th March, 1944, and published in the Punjab Gazette, Part 1, dated 17th March, 1944 (Home Department).
The State Government referred the matter to an arbitrator as required under r. 10, who, after enquiry, passed an award ordering the payment of an amount higher than what was offered by the Collector and also ordered the payment of certain amount on account of income tax which would be paid on the compensation received.
The State Government appealed against the award to the High Court of Punjab.
During the pendency of the appeal, Labhu Ram, one of the respondents, died.
The High Court, holding that the appeal abated against Labhu Ram and that its effect was that the appeal against Nathu Ram also abated, dismissed the appeal.
It also dismissed the cross objections.
The State Government applied for a certificate of fitness of the case for appeal to this Court and the High Court granted it, as questions of great private and public importance were involved.
It is not disputed that in view of 0.
XXII, r. 4, Civil Procedure Code, hereinafter called the Code, the appeal abated against Labhu Ram, deceased, when no application for bringing on record his legal representatives had been made within the time limited by law.
The Code does not provide for the abatement of the appeal against the other respondents.
Courts have held that in certain circumstances, the appeals against the co respondents would also abate as a result of the abatement of the appeal against the deceased respondent.
They have not been always agreed with respect to the result of the particular cir cumstances of a case and there has been, consequently, divergence of opinion in the application of the principle.
It will serve no useful purpose to consider the cases.
Suffice it to say that when 0.
XXII, r. 4 does 639 not provide for the abatement of the appeals against the co respondents of the deceased respondent, there can be no question of abatement of the appeals against them.
To say that the appeals against them abated in certain circumstances, is not a correct statement.
Of course, the appeals against them cannot proceed in certain circumstances and have therefore to be dismissed.
Such a result depends on the nature of the relief sought in the appeal.
The same conclusion is to be drawn from the provisions of 0. 1, r. 9, of the Code which provides that no suit shall be defeated by reason of the misjoinder or non joiner of parties and the Court may, in every suit, deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.
It follows, therefore, that if the Court can deal with the matter in controversy so far as regards the rights and interests of the appellant and the respondents other than the deceased respondent, it has to proceed with the appeal and decide it.
It is only when it is not possible for the Court to deal with such matters, that it will have to refuse to proceed further with the appeal and therefore dismiss it.
The question whether a Court can deal with such matters or not, will depend on the facts of each case and therefore no exhaustive statement can be made about the circumstances when this is possible or is not possible.
It may, however, be stated that ordinarily the considerations which weigh with the Court in deciding upon this question are whether the appeal between the appellants and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the Court.
The test to determine this has been described in diverse forms.
Courts will not proceed with an appeal (s) when the success of the appeal may lead to the Court 's coming to a decision which be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the Court 's passing a decree which will be contradictory to the decree which had become final with respect to 640 the same subject matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the Court and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is to say, it could not be successfully executed.
There has been no divergence between the Courts about the Court 's proceeding with the appeal between the respondents other than the deceased respondent, when the decree in appeal was not a joint decree in favour of all the respondents.
The abatement of the appeal against the deceased respondent, in such a case, would make the decree in his favour alone final, and this can, in no circumstances, have a repercussion, on the decision of the controversy between the appellant and the other decree holders or on the execution of the ultimate decree between them.
The difficulty arises always when there is a joint decree.
Here again, the consensus of opinion is that if the decree is joint and indivisible, the appeal against the other respondents also will not be proceeded with and will have to be dismissed as a result of the abatement of the appeal against the deceased respondent.
Different views exist in the case of joint decrees in favour of respondents whose rights in the subject matter of the decree are specified.
One view is that in such cases, the abatement of the appeal against the deceased respondent will have the result of making the decree affecting his specific interest to be final and that the decree against the other respondents can be suitably dealt with by the appellate Court.
We do not consider this view correct.
The specification of shares or of interest of the deceased respondent does not affect the nature of the decree and the capacity of the joint decree holder to execute the entire decree or to resist the attempt of the other party to interfere with the joint right decreed in his favour.
The abatement of an appeal means not only that the decree between the appellant, and the deceased respondent has become final, but also, as a necessary corollary, 641 that the appellate Court cannot, in any way, modify that decree directly or indirectly.
The reason is plain.
It is that in the absence of the legal representatives of the deceased respondents, the appellate Court cannot determine anything between the appellant and the legal representatives which may affect the rights of the legal representatives under the decree.
It is immaterial that the modification which the Court will do is one to which exception can or cannot be taken.
It is therefore necessary to determine, on the facts of this case, whether the State appeal could proceed against Nathu Ram.
The award of the arbitrator in each of these cases was a joint one, in favour of both the respondents Labhu Ram and Nathu Ram.
To illustrate the form of the award, we may quote the award for the year 1945 46 in the proceedings leading to Civil Appeal No. 635 of 1957.
It is: "On the basis of the report of section Lal Singh, Naib Tehsildar (Exhibit P. W. 9/1) and Sheikh Aziz Din, Tehsildar, Exhibit P. W. 9/2, the applicants are entitled to a sum of Rs. 4,140 on account of rent, plus Rs. 3,872 8 0 on account of Income tax etc., due to the inclusion of Rs. 6,193 8 0 in their total income, plus such sum as the petitioners have to pay to the Income tax Department on account of the inclusion of Rs. 4,140 in their income as awarded by this award." The result of the abatement of the appeal against Labhu Ram is therefore that his legal representatives are entitled to get compensation on the basis of this award, even if they are to be paid separately on calculating their rightful share in the land acquired, for which this compensation is decreed.
Such calculation is foreign to the appeal between the State of Punjab and Nathu Ram, The decree in the appeal will have to determine not what Nathu Ram 's share in this compensation is, but what is the correct amount of compensation with respect to the land acquired for which this compensation has been awarded by the arbitrator.
The subject matter for which the compensation is to be calculated is one and 642 the same.
There cannot be different assessments of the amounts of compensation for the same parcel of land.
The appeal before the High Court was an appeal against a decree jointly in favour of Labhu Ram and Nathu Ram.
The appeal against Nathu Ram alone cannot be held to be properly constituted when the appeal against Labhu Ram bad abated.
To get rid of the joint decree, it was essential for the appellant, the State of Punjab, to implead both the joint decree holders in the appeal.
In the absence of one joint decree holder, the appeal is not properly framed.
It follows the that State appeal against Nathu Ram alone cannot proceed.
It is however contended for the State that according to the entries in the village records, Labhu Ram and Nathu Ram had equal shares in the land acquired and that therefore the appeal against Nathu Ram alone can deal with half the amount of the award.
We do not agree.
The mere record of specific shares in the revenue records is no guarantee of their correctness.
The appellate Court will have to determine the share of Nathu Ram and necessarily the share of Labhu Ram in the absence of his legal representatives.
This is not permissible in law.
Further, the entire case of Labhu Ram and Nathu Ram, in their application to the Government for the appointment of an arbitrator, was that the land jointly belonged to them and had been acquired for military purposes, that a certain amount had been paid to them as compensation, that they received that amount under protest and that they were entitled to a larger amount mentioned in the application and also for the income tax they would have to pay on account of the compensation received being added to their income.
Their claim was a joint claim based on the allegation that the land belonged to them jointly.
The award and the joint decree are on this basis and the appellate Court cannot decide on the basis of the separate shares.
The State objected before the arbitrator, and urges before us, that under the rules, the joint application of Labhu Ram and Nathu Ram should have been 643 treated as separate applications with respect to the correctness of the compensation payable to each of them respectively and that the arbitrator should have made separate awards with respect to such separate claims of Labhu Ram and Nathu Ram.
The necessary corollary of such a contention for the State is that the abatement of the appeal against Labhu Ram will not make infructuous the appeal against Nathu Ram.
The respondent urges that the Punjab Land Acquisition (Defence of India) Rules, do not contemplate separate applications by the persons interested in the compensation on account of the acquisition of a particular parcel of land.
The arbitrator did not agree to deal with the claims of Labhu Ram and Nathu Ram separately.
He, however, did not decide the question on the basis of the land belonging jointly to the two brothers as members of the joint Hindu family.
He however held that the expression 'a person interested ' in r. 3, included all persons claiming an interest in the compensation to be paid on account of the acquisition of the land and that r. 18 permitted the joinder of applications for joint enquiry when each case rested on the same and similar basis and each of the applications included land included in a larger part of land acquired at one time.
He also took into consideration that the separation of the applications of Labhu Ram and Nathu Ram would involve various difficulties in matters of income tax.
He therefore used his discretion and ordered the application to be proceeded with jointly.
In view of our opinion on the main point, we do not consider it necessary to interpret the rules and decide whether the joint application was maintainable or not.
The fact remains that Labhu Ram and Nathu Ram made a joint claim and got a joint decree against the State for compensation.
The frame of the appeal is to be with reference to the nature of the decree challenged.
We therefore see no force in this appeal and dismiss it with costs.
This order will govern the other 644 connected appeals, viz., Civil Appeals Nos.
636 to 641 of 1957.
Appeal dismissed.

summary:
The Punjab Government acquired certain parcels of land belonging to two brothers Land N who refused to accept the compensation offered to them and applied to the Government of Punjab under r. 6 of the Punjab Land Acquisition (Defence of India) Rules, 1943, to refer to arbitration their joint claim based on the allegation that the land belonged to them jointly.
The State Government referred the matter to an arbitrator as required under r. 10 who passed an award in favour of both L and N ordering inter alia payment of an amount higher than what was offered to them by the Government.
The Government appealed against the said award to the High Court.
During the pendency of the appeal before the High Court respondent L died and as no application for bringing on record his legal representative had been made within the time limit, the High Court dismissed the appeal holding that the appeal had abated against L and that its effect was that the appeal against N also abated.
Held, that there can be no question of abatement of appeal against the correspondents of the deceased respondent as Order 22 Rule 4 of the Code of Civil Procedure does not provide for the same but in certain circumstances the appeal cannot proceed against them and such a result depends on the nature of the relief sought in the appeal.
If the Court can deal with the matter in controversy so far as regards the rights and interest of the appellant and the respondents other than the deceased respondent, it has to proceed with the appeal and decide it; otherwise it will have to refuse to proceed further with the appeal and therefore dismiss it.
Ordinarily, the consideration which will weigh with the court in deciding upon the question whether the entire appeal had abated or not will be whether the appeal between the appellants and the respondents other than the deceased respondent can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the court and the tests to determine this have been described thus: (a) when the success of the appeal may lead to the court 's coming to a decision which will be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the court 's passing a decree which will be contradictory to the decree which had become 637 final with respect to the same subject matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the court and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective that is to say it could not be successfully executed.
The abatement of an appeal against the deceased respondent means not only that the decree between the appellant and the deceased respondent has become final but also as a necessary corollary that the appellate court cannot in any way modify that decree directly or indirectly.
When the decree in favour of the respondents is joint and indivisible, the appeal against the respondents other than the deceased respondent cannot be proceeded with if the appeal against the deceased respondent has abated.
In the present case the appeal against N alone was not pro perly constituted when the appeal against L had abated and the State appeal against N alone could not proceed.


judgement:
Appeal No. 371 of 1957.
Appeal from the judgment and decree dated August 22, 1955, of the Bombay High Court in Appeal No. 49 of 1955.
C. B. Agarwala, J. B. Dadachanji, Ravinder Narain and O. C. Mathur, for the appellant.
Ajit H. Mehta and I. N. Shroff, for the respondent,. 1961.
May 1.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
This appeal arises from a suit filed by M/s. Binani Commercial Co. Ltd., on the Original Side of the Bombay High Court against the respondent Ramanlal Maganlal Mehta.
In its suit the appellant sought to recover from the respondent a sum of Rs. 93,053 3 0 which represented the loss suffered by it in the transaction in question or in the alternative damages for Rs. 88,229 3 0 for breach of the contract in respect of the said transaction.
The appellant is a Limited Company and it carries on business in Bombay as metal merchants, bankers and commission agents.
The respondent also carries on business in Bombay under the name and style of M/s. Balasinor Export and Import Co., and also as M/s. Ramanlal and Sons.
In January 1952 the appellant agreed to sell to the respondent 300 tons of Electrolytic Zinc at the rate of Rs. 171 per cwt.
against delivery orders issued under the regulations of the Metal Traders Association, Ltd., for Posh Sudi 15 delivery (January 12, 1952).
The respondent promised to pay for the said goods by January 21, 1952 and to take delivery thereafter.
The respondent paid to.
the appellant several sums aggregating Rs. 1,56,000 as a deposit for the price of the said goods.
The appellant tendered the said goods to the respondent whereupon he arranged to take delivery of only 160 tons and made payments on account.
The appellant then tendered the balance of 140 tons to the respondent but the respondent failed and neglected to take delivery of the said balance and to pay for it.
As a 628 result of the respondent 's default in taking delivery the appellant had to sell the balance in the falling market at Rs. 81 per cwt., and that had resulted in the loss to the appellant.
That in brief is the nature of the claim made by the appellant against the respondent.
This claim was resisted by the respondent on several grounds.
The principal ground urged by him, however, was that the transaction in suit for the sale of 300 tons of Electrolytic Zinc was in contravention of the provisions of Supply and Prices of Goods Act, 1950 (70 of 1950) and cl.
(b) of the Government of India Notification No. 1(4) 32(17)50 issued on September 2, 1950.
According to the respondent the said transaction was void and illegal and therefore the appellant 's claim was not maintainable in law.
The respondent also raised other contentions on the merits without prejudice to his principal contention about the illegality of the contract.
The suit was tried by Coyajee, J. on the Original Side of the Bombay High Court.
The principal defence raised by the respondent was tried as a preliminary issue by the learned Judge.
On this preliminary issue, the learned Judge held that the defence set out by the respondent was not good and not applicable to the facts and circumstances of the case.
His conclusion, therefore, was that the contract was valid.
The learned Judge, after delivering this interlocutory judgment, proceeded to try the issues on the merits, and having found in favour of the appellant on the said issues he directed that the matter be referred to the Commissioner for taking accounts to ascertain the damages suffered by the appellant in the light of the directions given in the Judgment.
Against this decision the respondent preferred an appeal and the Division Bench of the Appeal Court allowed his appeal.
Before the Court of Appeal only one point was argued and that was in regard to the validity of the contract.
The Court of Appeal has held, reversing the conclusion of the trial Judge, that the defence raised by the respondent was good and that the contract in question was invalid.
In the 629 result the Appeal Court has directed that the appellant 's suit should be dismissed with costs.
The appellant then applied for and obtained a certificate from the said High Court and it is with that certificate that it has come to this Court by its present appeal; and the main contention raised by Mr. Agarwala on behalf of the appellant is that the view taken by the Division Bench in upholding the contention of the respondent against the validity of the contract is erroneous in law.
It is, therefore, necessary at the outset to refer to the material provisions of the Supply and Prices of Goods Act 70 of 1950 (hereafter called the Act) and to examine very broadly its scheme and purpose.
The Act has been passed in pursuance of a resolution under article 249 of the Constitution for the control of prices of certain goods and the supply and distribution thereof.
Article 249 confers on Parliament the power to legislate in regard to a matter in a State List but the said power can be exercised only in national interest and after the Council of State passes a resolution in that behalf supported by at least two third of the members voting.
There is no doubt that the Act has been passed in national interest because national interest undoubtedly required that the supply and prices of certain types of goods should be controlled by the Central Legislature.
The prices in regard to those goods which are essential for national economy are apt to vary from place to place, and unless the supply of goods is rationally controlled the goods may be available in plenty in one place and may not be available in adequate measure in another.
It is with a view to make the ' supply of controlled goods fairly available in the country at a reasonable price that the Act purports to impose the necessary restrictions to regulate the supply and sale of the said goods.
Section 2 of the Act defines goods as meaning goods to which the Act applies.
Section 3 provides, inter alia, that the Act applies to the goods specified in the Schedule and to such other goods that the Central Government may by a notified order specify in 80 630 that behalf.
Section 4 deals with the fixing of maximum prices and maximum quantities which may be held or sold, while section 5 imposes restrictions on possession and sale by dealers and producers where maximum is fixed under section 4.
Under section 6 is imposed a general limitation of quantity which may be possessed at any one time, and the proviso to sub section
(1) makes it clear that it does not apply to the persons specified in cls.
(a) and (b) of the proviso.
A duty to declare possession of excess stocks is imposed by section 7, while section 8 imposes an obligation to sell goods as therein specified.
Failure to comply with the requirements of the said section is made an offence under the Act.
Under section 13 power is conferred on the Central Government to regulate production and distribution of goods, and section 16 confers power on the Central Government to authorise by general or special order any officer not below the rank of an inspector of police to effect search and seizure for the purpose of enforcing the provisions of this Act.
It is thus clear that the sections of the Act have been so framed as to give effect to the object of the Act to regulate and control the supply and prices of goods which are brought within the purview of the Act in the interest of national economy.
In the present appeal we are directly concerned with the notification issued under section 4(1)(c).
It is, however, necessary to read section 4.
Section 4 provides thus: "4.
(1) The Central Government may, by noti fied order, fix in respect of any goods (a) the maximum price or rate which may be charged by a dealer or producer; (b) the maximum quantity which may at any one time be possessed by a dealer or producer; (c) the maximum quantity which may in one transaction be sold to any person.
(2) Any such order may (a) fix maximum prices or rates and maximum quantities for the same description of goods differently in different localities or for different classes of dealers or producers; 631 (b) instead of specifying the maximum price or rate to be charged, direct that price or rate shall be computed in such manner and by reference to such matters as may be provided by the order.
" Section 5 imposes restriction on possession and sale by dealers and producers in cases covered by section 4 and provides by sub section
(1)(c) that no dealer or producer ,,hall sell or agree to sell or offer for sale to any person in any one transaction a quantity of any goods exceeding the maximum fixed under cl.
(c) of sub section
(1) of section 4.
It would be recalled that the respondent 's contention is that the contract in suit is void because it contravenes the provisions of section 5(1)(c) in that it does not comply with the requirements of the notification issued under section 4(1)(c).
Thus, for deciding the narrow controversy between the parties it would be necessary to determine the scope and effect of the provisions of section 4(1)(c) and the notification issued under it and the provisions of section 5(1)(c).
Let us now read the notification.
The notification provides: "(b) No such dealer or producer shall sell any non ferrous metals exceeding one ton unless he has obtained a declaration in writing from the buyer that the quantity proposed to be sold to him does not exceed his requirements for consumption for three months or in case the buyer is a dealer his require ments for normal trade for three months.
" What does the notification provide? It provides that no dealer shall sell any nonferrous metals exceeding 1 ton unless the other requirement of the notification is satisfied.
In other words, the notification imposes in the first instance a general ban on sale of non ferrous metals beyond 1 ton but this coiling is not absolute.
Sale beyond 1 ton can be validly effected provided the dealer obtains a declaration in writing from the buyer that the quantity proposed to be sold to him does not exceed his requirement for consumption for three months.
It also allows latitude to sell more than 1 ton in the case of a buyer who is a dealer.
The effect of the notification, therefore, is that two kinds of ceilings are imposed and thereby two maxima are 632 fixed.
Upto 1 ton sale can be effected without any declaration; beyond 1 ton sale can be effected either to a consumer or to a dealer provided the consumer or the dealer makes a declaration that the quantity sold to him does not exceed his requirements for three months.
It is common ground that no declaration was given by the respondent to the appellant before the agreement to sell was made, and so the respondent contends that agreement to sell more than 1 ton of the non ferrous metal in question is violative of the requirements of the notification and as such it contravenes section 4(1)(c) read with the notification and attracts section 5(1)(c) of the Act.
Mr. Agarwala contends that this notification does not fix the maximum quantity because according to him the requirement of the section can be satisfied by fixing an arithmetical quantity and that too in an immutable form.
The argument is that the failure to comply with the provisions of the relevant sections of the Act is made penal, and so it is necessary to fix one maximum quantity in respect of a specified non ferrous metal, and since that has not been done by the notification it is invalid.
We are not impressed by this argument.
Having regard to the large number of goods intended to be covered by the Act and the variety of circumstances under which they would be required by different classes of persons or dealers it would be enti rely unrealistic to suggest that the maximum which is required to be fixed by section 4(1)(c) is the maximum determined in arithmetical term and fixed immutably in all cases.
Besides, section 4(2)(a) itself indicates that different maxima can be prescribed by reference to different localities or different classes of dealers or producers.
Therefore, the argument that in the absence of the fixation of any arithmetical quantity of the immutable maximum the notification is bad must be rejected.
Then it is urged that the notification is invalid because it is inconsistent with the provisions of section 4(2) (a).
It would be noticed that section 4(2)(a) enables the Central Government to fix maximum prices or rates and maximum quantities for the same description of goods 633 differently in different localities or for different classes of dealers or producers.
It is urged that the maximum to be fixed under section 4(1)(c) must therefore be the maximum fixed by reference to different classes of dealers or producers, and since the impugned notification does not purport to do so it is inconsistent with section 4(2)(a) and therefore invalid.
This contention is clearly misconceived.
It is obvious that section 4(2)(a) cannot be read as a proviso and cannot be pressed into service for the purpose of controlling section 4(1)(c).
Section 4(2)(a) is an enabling provision and it is intended merely to serve the purpose of showing that notwithstanding the provisions of section 4(1)(c) which refers to persons it may be open to the Central Government to prescribe the maximum either in the way of prices or rates or quantities by reference to different localities or different classes of dealers or producers.
Section 4(1)(c) speaks of the fixation of maximum quantity which may in one transaction be sold to any person, and lest it be said that the maximum cannot be fixed in reference to classes of dealers or producers the Legislature has added the enabling provision as section 4(2)(a).
Therefore to rely on section 4(2)(a) for the purpose of construing section 4(1)(c) appears to us to be wholly unreasonable.
Now, if we look at section 4(1)(c), as we must, it is obvious that the notification is perfectly consistent with section 4(1)(c) inasmuch as it prescribes the maximum by reference to consumers as well as dealers.
There is one more argument which has been very strongly pressed before us by Mr. Agarwala which still remains to be considered.
He contends that though the notification may have prescribed a maximum quantity under section 4(1)(c) we cannot ignore the fact that as the notification is worded contravention of the requirements of the notification would not attract the provisions of section 5(1)(c) in the present case.
The argument is this.
The notification prescribes the maximum for sale at any one time, and sale in the context must mean actual sale.
The notification therefore cannot refer to or cover cases of agreement to sell or offer to sell.
In the present case the appellant no doubt agreed to sell to the respondent a quantity 634 contrary to the condition prescribed by the notification; but, at the stage of the agreement to sell the notification would not apply and so the agreement is perfectly valid.
If by his failure to give the necessary declaration the respondent has made the performance of the contract illegal he cannot take advantage of his own default and stamp the whole of the transaction as illegal under section 5(1)(c).
In our opinion this argument is based on a misconception of the effect of the provisions of section 4(1)(c) and section 5(1)(c) read together and of the notification issued under section 4(1)(c).
The scheme of the two sections is plain.
Under section 4(1)(c) the Central Government by a notified order is required to fix the maximum quantity which may be sold to any one person in one transaction, and that the impugned notification has done.
Once the maximum is thus fixed by a notified order section 5 immediately comes into operation, and it provides that in regard to commodities the maximum quantity of which has been determined by a notified order under section 4(1)(c) there is a prohibition against agreement to sell, offer for sale, or sale in respect of the said commodities contrary to the requirements of the notification.
In other words, once a notified order fixes the maximum in respect of the sale of any goods the agreement to sell the goods or the offer for the sale of such goods above the maximum specified in the notification for the purposes of sale is immediately hit, not by virtue of the notification as such but by the combined operation of the provisions of section 4(1)(c) and the notification issued under it and the provisions of section 5.
Therefore, in our opinion, it is futile to suggest that because the notification refers only to sale and not to an agreement to sell section 5(1)(c) would not hit the present contract in suit.
In this connection, weight to add that any argument based on the distinction between an agreement to sell and the actual sale as well as on the conduct of the respondent is really not open to the appellant at this stage.
The judgment of the learned trial Judge as well as of the Appeal Court clearly show that the appellant 's learned Cousel Mr. Mistree expressly conceded before both the Courts that if under the relevant 635 clause of the notification it is held that a maximum has been validly prescribed then the respondent 's defence would be valid and the appellant would have no case on the point of law.
In fact the Appeal Court has referred to this concession more than once in the course of its judgment and it has made it perfectly clear that on the appellant 's side it was expressly stated before the Court that if the point of law raise a by the appellant about the invalidity of the notification failed he would be out of Court.
That is why we think that the point raised by Mr. Agarwala that the agreement to sell was valid in this case is really not open to him.
It is true that in the trial Court the learned Judge has made certain observations that it appeared to be an implied term of the contract that the buyer would be ready and willing to give the declaration at the time of actual sale and it also appears that the learned Judge thought that it was not open to the respondent to take up the defence about the invalidity of the agreement to sell.
It is difficult to see how these observations can be reconciled with the concession made by the appellant 's counsel even before the trial Court; but we have referred to these observations because it is on these observations that Mr. Agarwala wanted to build up an argument that the respondent is precluded from disputing the validity of the agreement to sell and so his default in giving a declaration should be taken into account in dealing with the point of law urged by him.
In our opinion, apart from the fact that in view of the concession made by the appellant 's counsel this argument cannot be raised, we are satisfied that there is no substance in it.
As we have just indicated the scheme of sections 4(1)(c) and 5 is clear and so any distinction between a sale and an agreement to sell is obviously invalid.
That is why we have no doubt that Mr. Mistree was perfectly justified in making the concession that he did.
In the result the appeal fails but there would be no order as to costs.
Appeal dismissed.

dataset_name: IN-Abs

summary:
The Supply and Prices of Goods Act, 1950, made provisions for the control of prices, supply and distribution of certain goods essential to the national economy.
Section 4(1)(c) empowers the Central Government to fix the maximum quantity of such goods which may be sold to any person in one transaction.
Sect ion 4(2)(a) provides that the maximum quantities may be fixed for the same goods differently in different localities or for different classes of dealers or producers.
Section 5(1)(c) provides that no dealer or producer shall sell or agree to sell or offer for sale goods exceeding the maximum fixed under section 4.
The Central Government issued a notification prohibiting dealers and producers from selling any non ferrous metal exceeding one ton except upon a declaration by the purchaser that the quantity did not exceed his requirements for three months.
The appellant entered into an agreement to sell to the respondent 300 tons of zinc.
The respondent did not take the entire quantity and the appellant filed a suit for damages for breach of contract.
The respondent resisted the suit on the ground that the agreement was void as it offended section 5(1)(c) of the Act.
The appellant contended that the notification was invalid as only an immutable arithmetical maximum could have been fixed for each non fer rous metal but the notification did not do so and also as it did not fix the maximum by reference to difference classes of dealers and producers according to section 4(2)(a).
It was further contended that the notification applied only to a sale and not to an agreement to sell and as such the agreement did not off end section 52(1)(c).
Held, that the notification was perfectly valid and that agreement was void as it offended section 5(1)(c) of the Act.
Section 4(1)(c) did not require the fixing of an immutable arithmetical maximum as a large number of goods were intended to be covered by the Act which would be required by different classes of persons under a variety of circumstances.
Section 4(2)(a) was merely an enabling provision and did not oblige the Government to fix the maximum differently for different classes of dealers and producers; section 4(z)(a) was not a proviso to section 4(1)(c).
Once the maximum was fixed, then by the combined operation of section 4(1)(c) and section 5(1)(c) an agreement to sell or an offer to sell such goods in excess of the maximum was immediately hit, 627


judgement:
iminal Appeal No. 74 of 1961.
Appeal by special leave from the judgment and order dated May 7, 1957, of the Allahabad High Court in Criminal Misc.
No. 2006 of 1953.
Veda Vyas, section K. Kapur and Ganpat Rai, for the appellant.
G.C. Mathur and C. P. Lal, for the respondent.
April 27.
The Judgment of Gajendragadkar, Sarkar, Wanchoo and Ayyangar, JJ., was delivered by Sarkar, J. Das Gupta, J., delivered a separate Judgment.
SARKAR, J.
The only question that was argued in this appeal is substantially one of construction of section 99D of the Code of Criminal Procedure.
The appellant was the author of two books in Hindi called Sikh Mat Khandan Part 1 and Bhoomika Nazam Sikh Mat Khandan which he had published in April 1953.
On July 30, 1953, the Government of Uttar Pradesh, the respondent in this appeal, made an order under section 99A of that Code forfeiting these books which were thereupon seized and taken away.
That order, so far as material, was in the following terms: "In exercise of its powers conferred by section 99A of the Code of Criminal Procedure. . the 489 Government is pleased to declare the books forfeited to Government on the ground that the said books contain matter, the publication of which is punishable under section 153 A and 295 A of the Indian Penal Code.
" It is the validity of this order that is challenged in the present appeal.
Section 99A under which the order was made, so far as relevant, is in these terms: "Where any newspaper, or book or any document appears to the State Government to contain any seditious matter or any matter which promotes or is intended to promote feelings of enmity or hatred between different classes of the citizens of India or which is deliberately and maliciously intended to outrage the religious feelings of any such class by insulting the religion or the religious belief of that class, that is to say, any matter the publication of which is punishable under section 124A or section 153A or section 295A of the Indian Penal Code, the State Government may, by notification in the Official Gazette stating the grounds of its opinion, declare every copy of such book to be forfeited to Government Two things appear clearly from the terms of this section.
The first thing is that an order under it can be made only when the Government forms a certain opinion.
That opinion is that the document concerning which the order is proposed to be made, contains "any matter the publication of which is punishable under section 124A or section 153A or section 295A of the Penal Code.
" Section 124A deals with seditious matters, section 153A with matters prompting enmity between different classes of Indian citizens and section 295A with matters insulting the religion or religious beliefs of any class of such citizens.
The other thing that appears from the section is that the Government has to state the grounds of its opinion.
The order made in this case, no doubt, stated that in the Government 's opinion the books contained matters the publication of which was punishable under sections 153A and 295A of the Penal Code.
It did not, however, state, as it should have, the grounds of that opinion.
So it is 490 not known which communities were alienated from each other or whose religious beliefs had been wounded according to the Government, nor why the Government thought that such alienation or offence to religion had been caused.
Now section 99B gives the person interested in the books, or documents forfeited, a right to apply to the High Court to set aside the order made under section 99A, and section 99D specifies the High Court 's duty on such an application being made to it.
These two sections will have to be especially considered in this case and so they along with section 99C, are set out below.
section 99B.
Any person having any interest in any newspaper, book or other document, in respect of which an order of forfeiture has been made under section 99A, may, within two months from the date of such order, apply to the High Court to set aside such order on the ground that the issue of the newspaper, or the book or other document, in respect of which the order was made, did not contain any seditious or other matter of such a nature as is referred to in sub section (1) of section 99A. section 99C.
Every such application shall be heard and determined by a Special Bench of the High Court composed of three Judges.
section 99D. (1) On receipt of the application, the Special Bench shall, if it is not satisfied that the issue of the newspaper, or the book or other document, in respect of which the application has been made, contained seditious or other matter of such a nature as is referred to in sub section (1) of section 99A, set aside the order of forfeiture.
We think it fairly clear from these sections that the ground on which an application can be made under section 99B is the ground which, if established, would require the High Court to set aside the order under section 99D.
The appellant bad moved the High Court.
at Allahabad under section 99B to set aside the order of forfeiture of his books.
It seems to have been contended in the High Court that the order of forfeiture should be set aside on the ground that the grounds of the 491 Government 's opinion had not been stated.
With regard to this contention, the High Court observed, "The requirement to state the ground is mandatory.
A mere citation of words of the section will not do.
But as has been held by a Special Bench of this Court in Baijnath vs Emperor (A.I.R. 1925 All. 195), with which we respectfully agree, the High Court in view of the provisions of section 99D of the Code of Criminal 'Procedure is precluded from considering any other point than the question whether in fact the document comes within the mischief of the offence charged.
" In this view of the matter the High Court refused to set aside the order on account of the omission to state the grounds of the opinion.
The High Court then proceeded to examine the books for itself and found that their contents were "obnoxious and highly objectionable" and dismissed the application observing that the appellant had "entirely failed to show that the books did not contain matters which promoted feelings of enmity and hatred between different classes, or which did not (sic) insult or attempt to insult the religion or religious beliefs of the Sikhs".
The present appeal arises out of this order of the High Court.
The High Court was of the view that its duty under section 99D was only to see "whether in fact the document comes within the mischief of the offence charged".
It thought that a document would be within the mischief of the offence charged if, in its own opinion, it contained matters the publication of which would be punishable under either section 124A, or section 153A or section 295A of the Penal Code as mentioned in the order of forfeiture, irrespective of the Government 's opinion on the matter.
Otherwise, it seems to us, the High Court could not uphold the order for the reason that in its view the books offended the Sikhs and the Sikh religion in spite of the fact that there is nothing to show that the Government thought that the books had that effect.
The same view appears to have been taken in certain other cases, namely, Premi Khem Raj vs Chief Secretary (1), N. Veerabrahmam vs State of Andhra Pradesh (2) and Baba Khalil Ahmed vs State of U.P. (3).
(1) A.I.R. (1951) Raj.
(2) A.I.R (1959) A.P. 572.
(3) A.I.R. (1960) All. 715.
492 Apparently, it was thought in these cases that the words "if it is not satisfied that. . the book. . contained seditious or other matter of such a nature as is referred to in sub section (1) of section 99A" in section 99D meant, not so satisfied for any reason whatsoever irrespective of the reasons on which the Government formed its opinion about it.
We are unable to accept this construction of section 99D.
The question is what do the words "matter of such a nature as is referred to in sub section (1) of section 99A" appearing in section 99D mean? Do they mean any matter of that nature as the High Court thought? Or do they mean only those on which the order of forfeiture was based, that is, those which for the reasons stated by it, the Government thought were punishable under one or more of sections 124A, 153A and 295A of the Penal Code mentioned by it?.
It seems to us that the latter is the correct view and follows inevitably if sections 99A, 99B and 99D are read together, as they must.
Now section 99D is concerned with setting aside an order.
That order is one made under section 99A.
An order under that section can be made only when certain things have appeared to the Government and the Government has formed a certain opinion.
The section further requires the Government to state the grounds of its opinion.
It is this order, that is, the order based on the grounds stated, which the party affected has been given by section 99B the, right to move the High Court to set aside.
It would follow that all that section 99B can require the party.
to do is to show that order was improper.
Whether that order was proper or not would, of course, depend onlyon the merits of the grounds on which it was based; whether another order to the same effect could have been made on other grounds is irrelevant, for that would not show the validity of the order actually made; that order would be bad if the grounds on which it is made do not support it.
Two orders, though both saying that a pub lication contains matter which offends the same section of the Penal Code cannot be the same or an identical order if the reasons why they are considered so to 493 offend the section of the Penal Code concerned are different.
Now section 99B says that a person affected by the order may move the High Court to set it aside on the ground that the book "did not contain any seditious or other matter of such a nature as is referred to in sub section (1) of section 99A".
The matter men tioned here must, for the reasons stated, refer only to such matter on which for the grounds stated by it, the Government 's opinion has been based.
We proceed now to a. 99D.
It is concerned with the same order of forfeiture.
An order contemplated by section 99D is made on an application under section 99B.
That order must therefore accept or reject the grounds on which the application under section 99B was made.
These grounds, as we have seen, are confined to challenging the propriety of the grounds on which the Government 's opinion resulting in the order, was based.
The words which we have earlier quoted from section 99B occur substantially in the same form in section 99D.
The scope of the two sections is identical.
The common words occurring in them must, therefore, have the same meaning in both.
They must hence, in section 99D also mean such matters on which for the grounds stated by it the Government 's opinion was based.
They cannot mean, as the High Court thought, any matter whatsoever, irrespective of the Government 's reasons for making the order, which in the High Court 's opinion would have justified it.
This view of the matter also explains why section 99A requires the Government to state the grounds of its opinion.
The reason was to enable the High Court to set aside the order of forfeiture if it was not satisfied of the propriety of those grounds.
If it were not so, the grounds of the Government 's opinion would serve no purpose at all.
This would specially be so as section 99G provides that an order of forfeiture cannot be called in question except in accordance with the provisions of section 99B.
If the order could be upheld, as the High Court seems to have thought, on grounds other than those on which the Government based its opinion, there would have been no need to provide 63 494 that the grounds of the Government 's opinion should be stated; such grounds would then have been wholly irrelevant in judging the validity of the order.
The acceptance of the interpretation put by the High Court would lead to a result which, in our view, would be wholly anomalous.
The order of forfeiture with which section 99D is concerned is indisputably an order under section 99A.
Now, an order under that section is essentially an order of the Government and of no one else.
Take a case where the Government making the order states the grounds of its opinion on which the order is based.
Suppose the Government says that the expression of view A in the book concerned offends the religious beliefs of community X.
Now assume that in an application made to set it aside, the High Court was not satisfied that view A could offend community X but thought that another expression of view in the same book which we will call B, offended the religious beliefs of a different community, say community Y.
If in such a case the High Court upheld the order, which, if the view of the Court below is right, it could do, there would really be an order of forfeiture made by the High Court and not by the Government, because the Government in stating the grounds of its opinion had not, since it did not say so, thought that view B could offend the religious beliefs of community Y.
We think it impossible that the sections concerned contemplated such a result; the Code nowhere provides for an order of forfeiture being made by the High Court.
We are, therefore, of opinion that under section 99D it is the duty of the High Court to set aside an order of forfeiture if it is not satisfied that the grounds on which the Government formed its opinion that the books contained matters the publication of which would be punishable under any one or more of sections 124A, 153A or 295A of the Penal Code could justify that opinion.
It is not its duty to do more and to find for itself whether the book contained any such matter whatsoever.
What then is to happen when the Government did not state the grounds of its opinion? In such a case 495 if the High Court upheld the order, it may be that it would have done so for reasons which the Government did not have in contemplation at all.
If the High Court did that, it would really have made an order of forfeiture itself and not upheld such an order made by the Government.
This, as already stated, the High Court has no power to do under section 99D.
It seems clear to us, therefore, that in such a case the High Court must set aside the order under section 99D, for it cannot then be satisfied that the grounds given by the Government justified the order.
You cannot be satisfied about a thing which you do not know.
This is the view that was taken in Arun Ranjan Ghose vs State of West Bengal (1) and we are in complete agreement with it.
The present is a case of this kind.
We think that it was the duty of the High Court under section 99D to set aside the order of forfeiture made in this case.
We accordingly allow the appeal and set aside the Government 's order of forfeiture dated July 30, 1953.
The appellant will be entitled to a return of all books, documents and things seized under that order.
DAS GUPTA, J.
By a notification dated July 30, 1953 the Uttar Pradesh Government acting under section 99A of the Code of Criminal Procedure declared the books "Sikh Mat Khandan, Part 1" and "Bhoomika Nazam Sikh Mat Khandan" which had been published by the appellant Harnam Das in April 1953, forfeited to government on the ground that these books contained matters the publication of which was punishable under section 153A and 295A of the Indian Penal Code.
The High Court held on an examination of the books that they clearly came within the mischief of section 153A and section 295A of the Indian Penal Code.
Accordingly it held that the order of the State Government forfeiting the two books was eminently just and proper and in that view dismissed the application.
One argument appears to have been raised that the order of forfeiture should be set aside as the notification by which the government made the declaration (1) 496 of forfeiture did not state the grounds of the government 's opinion as required by section 99A.
The High Court rejected this argument being of opinion that in view of the provisions of section 99D of the Code of Criminal Procedure the High Court was "precluded from consideration of any other point than the question whether in fact the document comes within the mischief of the offence charged.
" It is quite clear that the government notification did not state the grounds of the opinion formed by the government that these documents contained matters the publication of which was punishable under section 153A and section 295A of the Indian Penal Code.
The question raised before us is whether the High Court was right in rejecting the argument that the order of forfeiture should be set aside on the ground that grounds of the government 's opinion were not stated in the government notification as required by section 99A.
The view which prevailed with the learned judges in respect of this question was in accord with what had been held by the same High Court in an earlier case of Baijnath vs Emperor (1) and by the Rajasthan High Court in Premi Khem Raj vs Chief Secretary (2).
The same view has later on been taken by the Andhra Pradesh High Court in N. Veerabrahmam vs State Of Andhra Pradesh (3) and by the Allahabad High Court in a later decision in Baba Khalil Ahmad vs State of U. P. (4).
A contrary view appears to have been taken by the Calcutta High Court in Arun Ranjan Ghose vs The State of West Bengal (5).
The material portion of section 99A is in these words: "Where any newspaper, or book. or any document. appears to the Government to contain any seditious matter or any matter which promotes or is intended to promote feelings of enmity or hatred between different classes of the citizens of India or which is deliberately and maliciously intended to outrage the religious feelings of any such class by insulting the religion or the religious belief of that (1) A.I.R. (1925) All. 195.
(2) A.I.R. (1951) Raj.
(3) A.I.R. (1950) An.
(4) A.I.R. (1960) All, 715.
(5) 497 class, that is to say, any matter the publication of which is punishable under section 124A or section 153A or section 295A of the Indian Penal Code, the State Government may, by notification in the Official Gazette stating the grounds of its opinion, declare . every copy of such book. to be forfeited to the government.
" It is clear therefore that before any government makes a declaration forfeiting a book under the provisions of this section it has first to be of opinion that the book does contain a matter the publication of which is punishable under section 124A or section 153A or section 295A of the Indian Penal Code.
Once it forms such an opinion the government has the power to declare the book forfeited.
The section requires that this must be done by a notification in the official gazette and in that notification the government is required to state the grounds on which it formed the opinion.
The legislature however did not make such an order made by the government immune from any attack.
In section 99B it has provided the means by which the aggrieved person may obtain relief against the order if in fact the government was wrong in its opinion and the book did not contain a matter the publication of which is punishable under section 124A, or section 153A or section 295A of the Indian Penal Code.
Section 99B runs thus: "Any person having any interest in any news paper, book or other document, in respect of which an order of forfeiture has been made under section 99A, may, within two months from the date of such order, apply to the High Court to set aside such order on the ground that the issue of the newspaper, or the book or other document, in respect of which the order 'wa s made, did not contain any seditious or other matter of such a nature as is referred to in sub section (1) of section 99A." Section 99D provides that if after hearing the application the High Court is not satisfied that the issue of the document in question contains any seditious matter or any other matter referred to in section 99A, that is to say, any matter the publication of which is 498 punishable under section 124A or section 153A or section 295A of the Indian Penal Code the High Court shall set aside the order of forfeiture.
The necessary result of the provision also is that if the High Court is satisfied that the book in question contains matter the publication of which is punishable under section 124A or section 153A or section 295A of the Indian Penal Code, the High Court will refuse to set aside the order of forfeiture.
It has to be noticed that section 99B in providing for relief to a person aggrieved by an order of forfeiture has limited the grounds on which relief can be applied for to one and one only, viz., that the issue of the newspaper, or the book or other document, in respect of which the order was made, does not contain any seditious matter or other matter of such a nature as is referred to in sub section (1) of section 99A.
The appellant 's contention that the High Court should also examine the notification to find out whether the government had stated the grounds of its own opinion as required by section 99A and set aside the order of forfeiture if it finds that this requirement has note been fulfilled seeks to add an additional ground on which an application can be made under section 99B and relief can be given by the High Court under section 99D.
The question is: Can that be done? It is well to recognise that just as a right of appeal is a creature of statute the right to apply for setting aside an order which is really in the nature of an appeal is equally a creature of statute and when the legislature creates such a right by a statute it may at its option make the right unlimited or may limit it in any manner it likes.
It is settled law that no Court can add to or enlarge the grounds for appeal as laid down in the statute creating the appeal.
The position is exactly the same when the statute creates a right to seek relief by way of application and no court can add to the grounds on which relief can be sought if the statute creating the right to obtain relief is limited to one or more specified grounds.
It is interesting to remember in this connection the right to apply for review granted by O. 47 r. 1 of the Code of Civil Procedure.
After specifying 499 some grounds on which a review can be applied for, the legislature added a further ground in the words "for any other sufficient reason".
The proper interpretation of these words "for any other sufficient reason" has engaged the anxious consideration of the courts and in 1922 the Privy Council after a review of the numerous cases laid down, the rule that "for any other sufficient reason" means a reason sufficient on grounds at least analogous to those specified immediately previously.
If the correct position had been that the court might add to the ground for a review whenever it thought fit, all the discussion as regards the interpretation of "for any other sufficient reason" would have been meaningless and unnecessary.
Indeed the position in law that the courts cannot add to the grounds to which the legislature has limited the right of relief is so very clear and unassailable that the learned counsel for the appellant did not like to suggest that a ground can be added.
To overcome this difficulty that the courts cannot add to the grounds of relief specified in section 99B and section 99D, an ingenious argument has been put forward that in order that the High Court can give proper relief on the very ground mentioned in section 99B and section 99D it is essential that the government 's order should state the grounds of its opinion.
The steps of the argument may shortly be stated thus: The government has formed an opinion.
The High Court has to see that opinion is correct.
In order to do this the High Court must know what weighed with the government in coming to its opinion.
Therefore, without the grounds of the Government 's opinion the High Court cannot be satisfied within the meaning of section 99D that the issue of the newspaper contained the matter complained of.
The fallacy of this syllogistic process is in the un soundness of the premises that in order to determine whether the government 's opinion is correct or not the High Court must know what weighed with the government.
When the application is heard by the High Court and it has to come to a conclusion whether it is or it is not satisfied that the issue of the newspaper, 500 or the book or other document does contain a matter mentioned in section 99A, the one and only way of coming to a conclusion appears to me to be to read the newspaper, or the book or other document.
Arguments of counsel might be of assistance; if the government has stated its grounds for coming to its opinion, that would also help; but the ultimate responsibility of deciding whether or not to be satisfied that the issue of newspaper contains matters as mentioned in section 99A can only be discharged by the High Court by reading the document in question.
It has been suggested that when section 99B and section 99D uses the words "any seditious or other matter of such a nature as is referred to in sub section
(1) of section 99A", they mean only those matters on which the Government based the order of forfeiture; so it is urged, unless the Government stated the ground of its opinion, it will be impossible for the Court to decide the question under section 99D.
I confess I do not think it reasonably possible to conceive of a case, where an order under section 99A will not mention the particular matter referred to in section 99A. (1) The mention of the particular matter out of the several matters referred to in section 99A which in its opinion is contained in the document does not however involve the statement of reasons for forming the opinion.
Suppose a Government states that in its opinion the document contains seditious matters.
It does not cease to be a complete statement on this point merely because the reason for forming the opinion are not also stated.
The formation of the opinion that one or more of the matter,% referred to in the section are contained in a document and the statement that such an opinion has been formed are quite distinct from the statement of the reasons for forming the opinion.
It appears to me clear that where, as in the present case the Government order contains a statement of the particular matter or matters out of the several matters, referred to in section 99A, viz., any seditious matter or any matter which promotes or is intended to promote feelings of enmity or hatred between different classes of the citizens of India or 501 which is deliberately and maliciously intended to outrage the religious feelings of any such class by insulting the religion or the religious beliefs of that class, that is to say, any matter the publication of which is punishable under section 124A or section 153A or section 295A of the Indian Penal Code" which in its opinion the document contains, no difficulty can possibly arise from the fact that the Court has not got before it Government 's grounds for forming such opinion.
But, asks the appellant, why was it necessary then for the legislature to require in section 99A that the Government should state the grounds of its opinion when notifying the order of forfeiture? The real reason, it is urged, was to enable the High Court to set aside the order of forfeiture if it was not satisfied of the propriety of those grounds, and necessarily also when no grounds were stated.
If that were correct, it was reasonable to expect the legislature to make the necessary provision in a. 99B that an order could be challenged on the ground that the grounds of the opinion were not stated, and consequential provisions in section 99D.
I can see no justification for reading into these sections section 99A and section 99D words which are not there, in an attempt to understand why section 99A contains such a requirement for statement of grounds of the opinion.
There can be no doubt that this is a very salutary provision that Government should record the grounds of its opinion.
Such a provision diminishes the risk of government making an arbitrary order of forfeiture.
It was therefore a question of legislative policy for the legislature to require that the government should state its opinion.
To say that there could have been no reason for including such a requirement in section 99A unless the legislature intended the High Court to interfere if grounds of the opinion were not stated, is, in my opinion, wholly unjustified.
It seems clear to me that the duty cast by section 99D on the judges of the High Court is not to see whether in a particular case the grounds stated by 64 502 the government for forming its opinion are correct, but to see whether the opinion formed was correct.
To perform this duty the one and the only way is to examine the document which in the Government 's opinion contains the matter complained of.
The argument that the High Court is not in a position to perform this duty under section 99D satisfactorily in the absence of a statement by the government of the grounds of its opinion appears to me therefore wholly unsound.
In this very case, the learned judges of the High Court of Allahabad felt no difficulty in coming to a conclusion on the question before them even though the government had not stated the grounds of its opinion.
I fail to see any justification for imagining difficulties where there are none.
I have therefore come to the conclusion that the High Court was right in rejecting the argument that the order of forfeiture should be set aside on the ground that the notification did not state government 's grounds for forming the opinion.
The appeal should therefore be dismissed.
By COURT In view of the opinion of the majority, this appeal will be allowed and the order of the High Court, set aside.
The appellant will be entitled to the return of all the books, documents and other things seized from him under the order now set aside.
He will also be entitled to the refund of expenses and costs that he had to pay under the order of the High Court.

summary:
The respondent passed an order under section 99A of the Code of Criminal Procedure forfeiting two books written by the appellant as in its opinion they contained matter the publication of which was punishable under section 153A and 295A of the Indian Penal Code.
The order did not state the grounds on which the respondent had formed this opinion as was required by section 99A.
The appellant applied to the High Court under section 99B of the Code to set aside the order.
Section 99D of the Code provided that the High Court shall set aside the order of forfeiture if it was not satisfied that the book contained seditious or other matter of such a nature as was referred to in sub section
(1) of section 99A.
The High Court was of the view that it could not set aside the order under section 99D for the reason that the order did not set out the grounds on which the Government had formed its opinion and that its duty was only to see whether the books in fact came within the mischief of the offence charged.
Upon examining the books for itself the High Court came to the conclusion that their contents were obnoxious and highly objectionable and dismissed the application.
Held (Per Gajendragadkar, Sarkar, Wanchoo and Ayyangar, jj.
Das Gupta, J. contra) that on the failure of the respondent to set out the grounds of its opinion as required by section 99A of the Code the High Court should have set aside the order under section 99D.
It is the duty of the High Court under that section to set aside the order of forfeiture if it is not satisfied that the grounds on which the Government formed its opinion could justify that opinion.
Where no grounds of its opinion are given at all the High Court must set aside the order for it cannot then be satisfied that the grounds given by the Government justified the order.
Arun Ranjan Ghose vs State of West Benaal, (1955) 59 C.W.N. 495, approved.
Premi Khem Rai vs Chief Secretary, A.I.R. (1951) Raj.
II3, N. Veerabrahmam vs State of Andhra Pradesh, A.I.R. (1959) A. Pr.
572 and Baba Khalil Ahmed vs State of U. P., A.I.R. (1960) All. 715, disapproved.
488 Per Das Gupta, J. The High Court had no power to set aside the order on the ground of failure of the Government to set out the grounds of its opinion in the order.
The duty cast on the High Court is not to see whether the grounds stated by the Government for forming its opinion are correct but to see whether the opinion formed is correct; this can only be done by examining the books.
Section 99B has limited the grounds on which relief can be asked for to one and one only, viz., that the books do not contain any objectionable matter.
It was not permissible for courts to add to that ground.
Baijnath vs Emperor A.I.R. (1925) All. 195, Premi Khem Raj vs Chief Secretary, A.I.R. (1951) Raj. 113, N. Veerabrahmam vs State of Andhra Pradesh, A.I. R. 1959 A. Pr.
572 and Baba Khalil Ahmed vs State of U. P., A.I.R. (1960) All. 715, approved.
Arun Ranjan Ghose vs The State of West Bengal, , disapproved.