!582

SADHURAM BANSAL

PULIN BEHARI SARKAR & ORS.

, April 26, 1984

[FA2(AL ALI, A. VAR~DARMAN AND SABYASACHI MUKHARll, JJ.j

'Code of Civil Procedure 1908, Order XL

Receiver appointed by Cofirt-Property in custody of receiver-Interference. with possession, not to be encouraged-No party can acquire title or

right over property in possession of receiver.

Code of Criminal Procedure 1973, Section 145

Order passed in prOceedings under this section-Does not affect titlet; Jf parlies to disputed premises-However reflects iactuin. of possesJi01t.

" AdministrGtion of Justice.-Socia! Justice-Courts . no longr merely Protector of ltgal rights-Technicalities of law dnd procedure not to be inistecf' upon--Subst_antial ju1tice to be meted out to parties~Necessity of.

In a suit filed in the High C(lurt for a declaration and relief in respect or several properties, the OffiCial Receiver of the High Court was appointedc Receiver.

On tbe request of the parties, the Official Receiver, c!ecided to• sell one of the properties with the permission of the <; curt. 1he price of the property was fixed at Rs. 3.S lakhs.

The appellant o.ffered .a sum of" Rs. 4 lakhs for purchase of the property,. and by hi; advocate's letter" enclosed a. draft for.Rs. l h!kh, being 1/4 of the amount.

A-mee.ting \vas.. held in the presence of the plaintiff and their counsel, an.d at the meeting the_ offer received from the appellant was consideied and it was decided that the offer of Rs. 4 lakh by bank: draft .. The Official Rc&eiver accepted the offer of the .appellant, communicated the accep.tance nd uested the appellant to deposit the balance amount.

The Official Receiver, thereaftermoved the High Court for directions.-. to rem'ov, e repondents 1 to 4 on. the ground' that they had trespassed i.nt°'"" the property a few months earlier.

Respbodents l to 4"moved an 3ppli'" cation for being impleaded in the suit and contend,!d that .they were residing with their fdmilies under a licence since 1975 and had coastructedi pllcca-, huts thereon and. that with the knowledge of this continuous possession, the parties _to .the suit -have filed the suit among themselves without.· impleadiog them (respondents 1 to 4). •

1 '

Si\DHURAM V. )'. ll SARKAR

• The Single .Judge.., rejected the aforesaid contentions ofresPc; indent.s 1 to 4 and held that though they were prepared to offer the sum of Rs. l iakh more thin the appellant the property could not be sold to them.

The Division Bench, however allo\\•ctJ their appeal, directed. respon .. dents I to 4 to pay to the Official Receiver a sum of Rs. 1.25 lakhs immedia,_ttY and tho balance of Rs. 3.75 lakhs theTeafter and on such payme-nt ordered sale of the disputed proPerfy. to respondents .1 to 4 and their 34 nominee~ oo the ground that the Court should do s.ocial just_ice and in doing such justice no te; hnicality of law would stand in its way.

' Dismissing the Appeal to this Court,

HELD: [P<r Fazal Ali & Sabyasachi Mukha.rji~JJ MaJority]

In administering justice-social or legal-jurisprudence h_as shifted

aay from finespi.ln technicaUties and abstract rUJes t.o recognition of bu man beings as human beings.

The Division Bench of the High Court ti h:ld adopted ihe above apJ)roach, and no law is brcached y the view t'aken by i~. -It is improper for this Court in exercise uf tbe discretion vested under Art. 136 of the Constitufion to interfere with that dechion.

[595-_FG; 622AB]

[Pet Fazal Ali, J.]

J~ In our opinion, there appears to be some misapprehen&ion about what actually social justice ts.

There is no ritualistic formµla or any magical charm in the cOncept of social justice.

All that it meanS is that as bt\veen _two parties if a deal is m:!dc witb one party without serious detriment to the otherJ then the Court W0uld lean in favour of the weaker section of the society.

Social justice is the recogniticn of greater good to larger num'ier without dprivation of acc1ued legal rights of anybody.

If such a thing can be done then indeed social _justicrr.u; t prevail over any "tcchnic:"il rule.

It iS: in response tothe felt necessities of tim~." f'nd situation in order to do greater good to a larger number CV(D though it might detract frpm some technicalrule in f,1vour of a party.

Living accomrnO .. dation is a hum2n Problen1 fOr vast millions i"r our country". [5958-D]

• 2.

Call it social justice or solving a socio-economic problem or give. it any other' name or noinenclnture, the 'tr.ct qf the matter is that this was. the best course in the circumstances that could have been adOped by the court.

3, Justice-social~ economic end politica.1-is Preamble to our Constitution.

Adriiinistration of justice can no .longer be merely protector of legal rights but must whenever possible be dispenser of socia1 justke.

. . l595H-596A]

- 4.

Tbe Division Bench of the High Court has d-0ne substantial ju Stice by throwing aboard. the technicalities particularly for the reason

th;_t cour1S fron over a champartous liti&ation or agreement even though .t.he c; ame ay be valid.

The Division -Bench by its decision got mQrc

S84

SUPREME COURT REPORT~

[1984] 3 $.C.R.

<A money for the owners on the one hand and one the other sought to r'eha bilitate the 38 families of the rcsporident who had already - built perma- .nent sauctures. [l97G-H]

• Jn the instant case, the Division BenCh \v3s perfe.ctly .justified in • accepting the offer of the respondents because : (a) the respondents were pteparcd to pay Rs. l lakh n1ore than the cppellant and the appellant did not pay the balance of Rs. 3 lakhs, (b) possession being 9/IOth of litle, . r "the respondents being in actull possssion would hJve no difficulty in becoming the owners, (c) tcspoadnts were . prepared to purchase the property notwithstanding lhigation, bec?use if they became owners no one could cha-Henge their title or poss:s'iion.

The Single Judge completely ignored two ma'teria, l, aspects : (a)· 1hiit a bulk or the considrat1on money. viz. RS. 3 lakhs out or Rs: 4 lakhc; was Oot pa.id by the < ppellant, and (b) that an owner also bas right t~ in1pose certain conditions, and in exercise ofthat, the condition that th~ purchaser would have to buy the land subject to the pending litigation was imposed. [597C-F; 5"6AD]

CI:er Varadarajan, J. dissentir.g)

D 't. The Dlvision Bnch had no fight or juHiticatioa to alter or modify the earlier order n1ade for the sale of the property which had become final,. or to hold th::it a sub; equ!nt offr m ide by respondents \ to 4 to purchase the p:-operty ror Rs._ 5 lakhs shou Id be accepted merly

becaue it appears to b! a 1yant1geaus to the owners of the property in th.: name of social justice. [6 l 2F] ·

2-.

The benefit c\aimed on behalf of rspond.;:nts I to 4 which can_. not calle4 a right, for there rs no corre'iponding obligation-cannot be equated with or even brought aoy . .vhere near the soci , J ju_stice IDentioned.-- in the preamble or the Constitution. (612G]

Respondents 1 to 4 arc trespassers in respect of the properly which ls in custodi:z legi· and they are in contempt of the Court.

Thy cannot be: allowed to coninue to be in contempt and urge it as a/gr0und for obtain'ing the btnfit of tile saleof the p.ropJrty in their fovour.

I( the appellant has not com;>! ieJ with any condition it m1y be gnund for the owners and the Official" Ileciver no't to :iccep

0 t .his offer and refu'>e to sell the proper1y to im and not for respondents 1 to 4 to raise any objection.

The offer has been accepted rightly or wrogly niore than once and there. , fore the appellant.may have a right to sue for pecific prforril1nce of the contract on the basis of that acceptance by the ofii::ial Receiver given with the approval of the parries The same iS the position -in regard to the delay of about a month in paying the balance of Rs. 3 lakhs by the appellant. [6 llD-F]

In lhe instant cac; e, the woperty has bee11 agreed to be so 1d bjr Private treaty and the Official Receiver has been authorised to sell the propertY

eiher by public auction Or hy private treaty. , The Court does not come into the picture in such a case and there is no need for the Court to -apiJr"ove •

, I

SADHURAM V. P. B. SARKAR 585

oC,?r confirm such sale; The parties who are sui juris must be dec.:ined to A bav e knov.-n their interest best when 'they chose to approve the sale of. the

property for Rs. 4 lakhs in favour of the appellant notwithstanding the ·-fact that repondents l to 4 had offered to purchase the proJ'erty for :Rs. S !akhs.

The appeal has therefore to be allowed. [6 l 2E; 61 JB]

Evere; t Coal. Company d>) Ltd v. State of Bihar & Others, [1974] I SCR P. 571 at P. 513, Kayjay Industries (p) Lti. v.

Asneiv Drums (P) Ltd. & Othm, [1974] 3 SCR P. 678, Jibon Krishna Mukhe.fee. v. New .Bheerbhum Coal Co. Ltd. & Anr., [!960] 2 SCR P. 198, Tarinikamal Pandit ·.a Others.v. Pra[ull" Kumar ChatierjOI!, [1979] 3 SCR P. 340, referred to.

<(Per Sabyasachi M"kharji, J.l

. J. The pcndency of the procceedings under Section 145 of the Code -cf Criminal Procedure and oder, if any, paed thereon does not in any

way affect the ti:tle.of the parties to the disputed premises though it rt:fl.ects 4he Lc!um or possession.[616D]

Bhinka and Others v. Cirarcn Sirgh, [1959] Suppl. 2 S.C.R. P. 798 ireferreO to, .-

When the pi-opcrty is in custody of a receiver appointed by the .court; the property is in the custody of the court and interference with such

.possession hould not be encouraged and no p:i.rty' ~1n acquire any title or right by coming in or ovet'the property whi-ch is iil the possess.ion of the &:ecei ver or sanction of t.he court [t" I SF]

Ilalsbury's Laws of England, 4rh Edn., Vol, 39 pages 451, 452 para .. "'graph1 890, 89.1: Kerr On Receiers-16th Edn. p:iges 121 referred-to .

• 3,· The concept of social justice is not foreign to legal juStice or -.social \Veli-being or benefit to the community rooted in the caccpt of justice i_n the 20th. century: The ch1Jlcnge of social justice is prirnariiy a '.challenge .to th~ society at large more than to the court immediJtely.

.Social justici:Js one of the aspirations o"f our CoJstitution.

But 1 h-:! curts, .are pledged to. administer justice as by law established. [620F]

In ,1he instant cat.e, in formu13ting the cncept of justice, however,

he inartku 1ate factor thit lrge number of human be'iJlgs should not be dislodged frorn their 1)ossessio1 if it is otherwise possible to do so cannot

tu: be a factor which mun and should infl.u !nee the mids of judg.!s.

It is true thJ.t {he persons who were alleged to be in possession are with

ualean, haRds, bu[ they can1e for shelter and built in hutineutg.

They do n6t want to be rehabilitated at competitive birgain .piice.

In the circum- '1itances they-ih.ould oot be denied rehabilitation on the ground of their .originil .ilkgitimacy. l620G-H]

l)J,. The felt n_ecessities or time and in this case the convenience of the Si1.uation and the 1,1eed tor. adjl!sting the rights of a larger au nbr of

SUPREME COURT REPORTS [198.f] 3 S.C.R- . ,._ . '

.JI

people v.'ithout deprivation. of <1riy .accrued right of anybody would b~ justice according. to 1aw.

Before social justice as something alien to legal justice, is rejected, it. shcu'd be remembered, th.at a meaningful definition of the rule of law must be based on the re'} Ji ties of contemporary so.:ieti-e.sand the realities of the cOntemporary societies are-men are in acute shortage of living accommcdation-and if they are prepared to' bargain.. and rehabilitate tbemselvs on competitive teyms, they should be. encouraged and no technical rules sbou1d stand in their way.

That would be justice. 'by highways' and not infiltration 'by t?elanes'. [6i!H-622B]

CIVIL APPELLATE JURISDICTION . 1983 .

Civil Appeal No. 5887 qf

f .

. c Appeai by Special leave from th~ Judgment and Order dted

the 25.7.1983 of the Calcutta High Court in Appeal No. 271 of 1983.

S.S. Ra;1, S. N. Kaker, P. K. Mullick, R. Deb, N. P. Agf{arwala 'r'• and B.P. Singh for the Appellant.

G.L. Sanghi, and H.K. Puri for Respondent.

Anil Dev Singh and Ashok Sil for Respondent No: 5.

The Judgment of the Court was delivered by

FAZAL Au. J, This ''lppeal by special leave against th, e judg-. men! of the Calcutta High Court discloses an unfortunate litigation .which proves the-well-known legal maxim "del'1y defeats justice'' . and arises out of a Will executed by the testator which was hotly contested by various rival claimanti resulting in an action which went on merrily and sprightly for almost three decades as a result of which i.n the back-waters of the long-drawn litigation most of the claimants died and their successors were interested not iu the property but in the money which the prop.erty would bring, if sold.

As a result of internecine disput> between 1he heirs, an Official Receiver had to be appointed to look after the property and the I . final end of the drama seems to have begun .when the Receiver, on the request of the .parties, decided to sell the property with the permission 6f the court by a pr; vate treaty least the litigation might draw the last drop of the blood of the property rights of theuheirs.

Meanwhile, some more events followed which made the task of the Receiver botb complex and complicated as the respondents put up their claim to.possession of the property e.ither as trespassers or as. license.es from some. of the hefrs. ·

' lr

SADllURAM v. P. B. SARKAR (Fazal Ali, J.)

Thus, while ihe negoti.ations for the private treaty were going on a new upshot in the guise of the repondents' claim seems to nip in the bud the attempt of the owners to get the property back.

During the course of the three decades, lot of changes took place in

Howrah-the population rose by leaps and bounds, $. number of build.ings came up and perhaps it )Jecame next to impossible for the heirs to occupy the premises again.

To add to this, came ilp a new lltigation in the shape of proceedings under s. 145 of the Code of

Ciminal Procedure between the parties.

The heirs having given up all hopes of getting vacan~-posses sion became "sadder and wiser" to sell the property if they could get a handsome amount for the same.

A bargain was, therefore, struck, with th.e approval of the Receiver, by which )he entire pro- perty was agreed to be sold to the appellant fot a sum of Rs. 4 lakhs, uder which he paid Rs. I lakh and promi>ed to pay the remaining amount of Rs. 3 lakhs at an early date. The appellant also expressed his willingness to take the. property under sale subject to the pending litigation.

The matter, bowevor, did not end here because the trespassers jumped into the fray in order to stop or render the sale nugatory.

When the matter came up before the court, it, on being satisfied that the sale was from all points of view in the intrest of the heirs, affirmed the said sale. The appellant contended th•t the possessions of t]je premises by the respondents did not pose any problem because they being rank tespa>Sers could be evicted summarily by

tli~ Receiver under the provisfons of the Civil Procedure Code.

But, we think that the matter was not so simple as that because once possession of the premises by the respondents had la•ted fOr a year or more and proceedings under s. 145 of'the Criminal I'rocedure Code bad already started, the Jaw bad totake its normal course.

So far as the criminal court "it concerned, the only course which could at best be taken was to declare possession of the pai; ty who . was in possession two months next before the initiation of the procee-. dings under s.145 or of the party who was found to be in poss; ssion of the property at tne relevant tilne.

The relevant portion of s. 145 may be extracte"d below:·

587 ·,

"145. Proeedure where dispute concerning land or H water 1s likely to cause breach of peace.

• .1>

SUPREME COURT REPORTS

[1984] 3 S-C.R.

( 4) . The Magistrate shall then, without reference to the merits Or the claims of any of the claims of any of the parties to a right to possess the subject of the dispute, peruse. the statements so put in, here the parties, receive all such evidence as may be procfuced by them, take such furthe( evidence, if any, as he thinks necessary, and, if possible,. decide whether any and which of the.parties was, at the date of the order made by him under sub-section (I), in possession of the subject of dispute :

• ' Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a poHce officer or other information was recei.ved by the Magistrate, or after that rlate and before the date of his order under sub-section (I), he may treai the party so dis possessed as if that party had been in possession on the date of his order under sub-section (!J,

(6) If the Magistrate decides tht one of the parties was, or should under the proviso to. sub-section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course. of law, and forbidd1ng all disturbance.of such possession unfl

such evition; and when he proceeds under the proviso to sub-section ( 4), may restore to posse1sion the party forcibly and wrongfully dispossessed."

With this primordial preface and institutional introduction, we now proceed to summarise the facts of the case, most of /--..; which have been reffeoed in what we have said above.

The story of the case begin's with the execution Of a Will and testament by one Jitendra Kuniar Das on May 22,.1952 in favour of sonie .of l1is near relations, in respect of pre, nises No. 7, Duffers Lane, Liluah, Howrall as also some premises in. No. 211, Old China

Baar Street, Calcutta. The suit was instituted for a . declaratfon that the aforcsa'd Will was void and . invalid, hence the legatees under the Will. had no right, title or interest. The suit went on dingdong frC>nl one stage to another until 1973 when, according to, the ri:spondent~, two of the uwners, viz., .Smt. Malati Das and

' lr

SADHURAM v. P. B. SARKAR (Fazal Ali, J.) 58!1-

 Jienqra Kumar Das or a.t least one of them put them (respon A. dents) in po.ssession of the Duffers Lane property under a leave and licence. During the course of their possession the respondents constructed permlnent structures and have been regularly residing there since. 1975. ·

.It is alleged that.in February 1983, nre broke out in the factory adj1cent to the premises in question and .firebrigado men entered ,

into the premises by .breaking a portion of the v.all to get access to the pond. It is t'h! case of the appellant tbat on March 14, 1983, respond, ent Nos. 1 to 4 ... alongwJth some miscreants forcibly entered into the land. This, however, is disputed and j,. the root of contro

versy in this case.

It.appears that the present ppellant, v.ho had not yet b.ecome a purchaser, informed the Official Receiver that certain persons had entered into the premises in question.

On this the Official Receiver informed the parties. On 13th May, 1983 the Offi"ial Receiver authorised the appellant 'to take steps for prote~

tion of the pr0perty. lt is difficult to appreciate !low before a con eluded co; J.tract and a conveyance in fa1 our of the appellant, the Offici1I Rec, iver could have authorised the present appellant to take steps for removal of respondents treating them unilaterally as trespassors. Ordoi was obtained on May 24, 19S3 from a learned Single Judge of the High Court directing the police to remove the unauthorised occupants. On June 22, 1983 respondent Nos. I to 4 made an application for being added as parties to the said pending, suit for recalling the order for police help to eject them from the premises in dispute;

In the said application four of the' respondents, viz., Pulin Behari Sarkar, Manick Seel; Gope Nath Sarkar and Sudhanshu Bimal Dey, mentioned the fact that they had come to know ab'outthe appointment of the Official. Receiver from the police and they had further come to know abont the offer made by the appellant for the purchase of the pJemises in dispute. The said applicants (being respondents herein) alleged thaf they .alongwith their families, with, the leaveand licence of one of the co-.owners, were residing in the premises since 1975 and had constructed pncca huts and in spite of the same, the appellant did not inform th.e Court of the.said fact before obta.ining police help against them. I.t is further alleged . that on May 2, 191!3 they had come the know tht the appellant had obtained ex parte .order from the learned Sub-Divisional Magistrate (Executive) directing the Superintendent of Police to restore posses sion of the disp}lted premises, comprising bout six bighas of land, by' arranging police pickets. ' ·

:a.·

.~·

, I

[1984) 3 S.C R.

, di

Thereafter, the said applicants filed an application before the learned Sub-Divisional Magistrate. (Executive), Howrah, under s. 145(5) of the Code of Criminal Procedure with a prayer to ecall . the ex parte Order mentioned hereinbeforc and to call for a report from the local police and others regarding possession of the said applicants in the dispnted premises. The Sub-Divisional M1gistrate d'.d not pass any order but adjourned the said application to 7th May 1983. Though no formal older was passed, the s>id applicativn was kept on the record. After coming to know that certain other orders might be passed, the applicants moved a revision i!pplication , under the Criminal Revisional Jurisdiction of the High Court and thereafter obtained the stay of the Order of 26th April 1983, passed 'by the learned Sub Divisional Magistrate. This position is not disputed. So, th.e Revision application under s. 145 of the Code of Criminal Procedure is still pending before the High Court.

 The learned Single Judge of the High Court did not make a deeper probe into the history. of the litigation and the fact that if the respondents were in possession even as trespassers and procee.· dings under s. 145 were pending aild had not been quashed, they could not have been summarily ejected. The learned Judge further noted that the tesponcfent~ .hd offered to pay R.s. 1 .lakh more for purchase of the premises in dispute but the learned Judge was of the view tha1the said offer cannot and should not be accepted.·

The Division Bench, however, was of the view that the offer made on behalf of .respondents 1 to 4 should be accepted as there was no conc\Uded .contract of sale in favour of the appellant and hence the.re was no completed sale yet. The Division Bench further noted thus:

"On the other hand, we find .that 38 families have been residing fo the disputed land. \tis submitted by Mr. Bhabra that these persons are all trespassers without any vestige of title. It is, however, the case of the .petitioners that they have been residing in the disputed land by making certain structures under the. leave and licence of two of the owners of the said premises although one of the owners, Smt.

Malati Das, . who is alleged to 'have granted the iicence, has denied granting land of such'licence. If the disputed land is sold to the respondent No. 2, then 38 families who have

been residing therein would be evicted with police help. In . . .

SADHURAM V. p, B. SARKAR (Fazal Ali, J:Y

-0ur opinion, the Court should do social justice .and in doing such justice ai, y tchnicality of law will not stand in its way.

Social justice require.s that the disputed land should be sold to the petitioners and others residing on the disputed land.

Moreover, the petitioners have offered to pay the price of Rs. 5,00,0CO, that is to say Rs. 1,00, COO more than the offer of the respond, nt No. 2." ·

At this stage, it may be necessary to notice the terms and . . -conditions under "which the owners agreed to sell the properties to => • <the appellant, which may ; be extracted thus: ·

.'\

"We further undentand that a meeting held by you it has been i:\ecided that an cffer should be accompanied by a:.

Dank Draft on State Bank of India of ah amount equivalent to 25% of the offer.

We hereby make an offer for purchase of the above property for Rsc 4, CO, CCO (Rupees fcur lacs) subject to the Vendors' making out a good and marketable little free from 'encumbrances on behalf of ou_r client Sri Sad!zuram Bansal

of No. 23A, Netaj1 Subhas Road, Calcutta-700 001. The sale will be completed within six months or such further extended time as may be ag.reed up,)n in one o~ more lots by one or more. sale deeds in favour of our client or his nominee or nominees .

We hereby enclose a diaft of State Bank of India for Rs. l ,00,000 drawn in your favour as desired by you.

After hearing from you that om client's offer had been accepted, we shall forward to you the agreement for sale for your approval."

This offer was made by the appellant on December 20, 1982 :and at a meeting convened by the receiver thp owners while generally cagreeing with the terms of the said offer, imposed some conditions.

For instance, Mr. Mitra. counsel for. some of the .Objectors while indicating his clients' view emphasised that the acceptance of the -o!fer would be subject to the' buyers agreeing to purchase the land with pending litigation; the exactentence may. be extracted thus:

~'My clients have no objection with regard to the

• 591

(1984] 3 S.C.R

accepten¢e oftlte said offer or'M/s. L.P. Agarwalla & Co •• subject to Jhejr clients Mreeing to purchase the same land with pending litigation in respect of the said poperty."

Similarly, )he counsel for the other owners also accepted the. offer of the purchaser. After having accepted the offer, it was decidect . to circulate a draft agreement for sak for finalising approval of theowners.

Before proceeding to another important stqge in the -case, it may be mentioned that from w(lat has been extracted above, foe .offer of the appellant through their mtorney (LP. Agarwalla & Co.)

was not accepted unconditionally but with ccrt•in reservations which on a close scrutiny ran counter to the stipulation mentioned in the o(fer of the purchaser. For instance, while the prchaser insisted . that he would buy th> properties subject to the vendor's making out a good and marketable title free from encumbrances but this does not appear to have found favour with one of the owners .b<cause the clients of Mr. Mitra had dearly_ indicated that the offer would be accepted only if the purchasers were prep1red to buy the land with the pending litigation.

 Thereafter, the matter having been placed before the court, the receiver informed L.P. Agarwala & Co. that the offer or the purchasers was accepted and the balance of Rs. 3 lakhs had to be paid at mi early date. Thdetter informing L.P. Agarwala & Co. was. written by the receive, r on 13.1.83. In the context of the circumstanees mentioned above, the term 'at an early date' had to b~ construed literally so as to mean 'expeditiously and. without any reasonable delay'. It cannot be interpreted to give a long rope t~ the purchaser-to deposit the balance of the amount whenever he liked .. It would hwe been better if the receiver could have fixed a particular date by which the balitnce amount .was to be deposited, failing w!)ich the contract would .stand cancelled. Even so, as a corollary of the cgrresporrdence beiween the parties, this condition must be read into the letter of the receiver. However, the balance Of . .Rs. 3 !akhs was never paid until the matter came up to this Court.

In between, the purch1Sers approached the receiver to evict the trespassers summarily ven though by t~t time the contract had not passed. into the domam of an exee, uted contract but was only a execiltory contract and conferred no.title on the purchasers. It seems to us that the purchasers were more concerned with taking the posse, ssipn and evi_cting thetrespassers because they knew full well

SADHURAM "· P. B. SARKAR (Fazal Ali, J.) 593

that in view of the proceedings under;. 145, it would have been.

A difficu1t for them to get the possession and therefore reserved the balance amount of R, s: 3 lakhs until they got the possession.

They, ho)Vever, rose up from their deep slumber oly when, they realised that the respondents had made an application for being

arrayd as parties to the suit by putting forward their case that since. they \)'ere in possession ofthe,, roperties and had also constructed .· their own structures; they co11ld .not be evicted summarily because the matter was sub judice. ~

In order, however, to cut the matter short, the respondents themselves made a cle.ar offer to purchase the properties in question . by paying Rs. I lakh more than the appellant and prayed to the court that their offer should be accepted; In fact, there was no bar to the receiver in accepting a higher offer because the appellant's offer had not yet bern translated into action or become. operative.as the purchaser had not yet fulfilled the two conditions, viz., (!) not makmg the.payment of the balance amount of Rs. 3 lakhs, and (2) not indicating that they would buy the properties subject to the pending litigation:

It was argued by th.e appellantthat so far as he was concerned, the contract was complete and couH not be superseded even if a higher offer was made to the receiver: This argument cannot be accepted because the purchasers having themsdves committed a breach of the contract could not insist that the contract should be enforced without their having complied with the conditions agreed to. between tire parties. Afterall, this.was not a court sale where the highest bid was made and the amount. was deposited , that the sale • l>ecaine irrevocable.

In these circumstances the Division Bench directed that Rs. !,25,000 shold be paid by the present respondents 1 to 4 on or before !st August 1983, which it may be noted has been paid; and thereafter pay the balance sum ofRs. 3,75,000 by 29th August 1983, which could not be paid because in the' meantime .special leave to appeal was granted by this Court and a stay was obtained. The Division Bench flirther directed that in case payments were made within the time, the property in question should be conveyed to the persons named in the said Order. It was. furthe~ directed thatin case respondents 1 to 4 committed default in paying the purchase

pric~ Within the stipulated ti111e, the S!>id order 11c.11ld stand \aeat(d

59.4 SUPRH!Ji COURT REPORTS

(1984] 3 S.C.R.

A and the Order of the Learned Single Jtidge would stand confirmed, i:e., the sale would be made in favour of the appellant.

Corning .back tci the facts, the respondents' claimed before. the learnetl trial Judge for mvestigation of their right to be in possession of the disputed premises by virtue of the leave or licence granted by OI)e or two of' the co-owners. The. investigation of that point on evidence did not take place though there are passing observations in. the decision of the learned Single 1!idge that Smt. Malati Da&and Jitendr&.Kumar .Das bad no title or interest to create any licence in their favour. and that one of them further denied hiiving given any such licence. It has te be borne in mind that there has been no in.vestigation of the respondents' right to be in the premises; even a. trespasser cannot .be thrown "out of his occupation or posse.ssion, except by due process of law. The. owners.appeared in these proceedings and supported. the appellant. In fact, In the affidavit filed - on behalf of the Receiver it has been made clear that theY leave the matter to this H on'ble Court.

• The appellant's rights which have not yet crystallised would not be hampered. court's dominipn civer:the property is still tliere.

The Official. Receiver is after all an agent of the . Court. as has been held by this Court in a number of cases. ' ' ' .. '

f '

In the case of Evrest Coal Company (P) Ltd. v. State of. Bihar .. k

& Ors.('), this Court reiterated that when a court placed a Receiver ·· in possession of property, the property came under the custody of the court, .th.e Receiver being merely an officer or agent of the court.

In Kayjay Industries (P) Lid. v. Asnew Drums (P) Ltd. & Ors.c' this Court reiterated the court's obligation to exercise discretion to 'make out a fair sale out of a bargain.

In Tariikamal Pandrt & Ors. v.

Prafull Kumar Chatterjee

(dead) by Lrs (') th1~ Court reiterated (at p. '.153) that the receiver was appointed under Order 40 Rule I and a property could be, sold . by the receiver on the directiqn of the Court ev.en by private negotiations. '

(!) (1978] 1 S.C.R .. 511.

(2) (1974) 3.S.C.R. 678.

(3).(1979)) S.C.R. 340 .. •

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SADHURAM v. P. Jl. SARKAR (Faza/ Ali, J.) 59~

{_ ·~ if in these circumstance~ ihc court directs that on payme.n.t of. ' ' ' ' . - a '1riglier . sum of money for the benefit of the owner, and w1thi:mt any brach of any tegal right cif the intending purchaser, the property:· can be conveyed .to persons in occupation with large number. r.

families, the Court acts properly and with social wellbeing in mind.

':Mr. S, S. Ray, appearing for the appi1Iant, submitted .that . ' • . the entite question was a legal 'issue and there was no warrant for the le'irnea Judges'ofthe Higt C~\irtto r cvi,-imported the eloctrie

'-·~· ,

. of secial justice. fo our opinion, there app:ea:ts"to be som~ misapprehension about )Vhat actually .social justi\:e. is .• Th, efe Ml o

ritualistic formula or any magical charm, i.n the concept of social justice. All thatit means is.that as beiween two part; es if 3" deal

is made with orie party without serious de\riment.to the other, then the Court would.lean infav<)ur of the weaker sec, tion of the society,

Social justice is the recognition of greater good to larger number without dprivation ofaccrued legal rights of anybody. 1r' such a thing can be dorie then indeed social justice musfjirevil ovr any technical rule. It is in respom1e to the felt necessities of time and situalion in. order to do greater good to a larger : number even thciugh it might deiract frbm some technical rule in favour of· a party. Living acommodation is a human proJ?lem for vast millions : in-Our.country.

The owners, in this case, are getting legally Rs~ 1.·: lai, hmore.

We must remember that in administering justice-sopial pr legal jurisprudence has shifted away from ; llnespuri technicalities and abstract rules to recognition of humanbeing as bU:inan beiiljlS, and as human. needs and if thse can be . fulfilled without . .deprivation Of existing lega!'rights of any party concerned, courts must .lean to wards that and if the Division Bench .. Gf the. H; gb Court, in the facts atid circumstances of the case, has leaned towards that, it is improper for this Court in exercise of the. discretion :vested. under Aft. f.36 of the Constitution fo interfere with that decision;' -.w~ would do. well to remember that justicesoCial, economic and p9li

ticalis preamble to our Constitution. Administration of justice can no longer be merely. protector of legal rights but must whenever possibl1;.be dispenser ofsocial justice.

. .

- . . 'Call it s9cial justice or solving a socio.economic problem or give it any other name or nonienclature, ihe fact of t])e matter is that this was the best course in the circumstances that could hav~

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11.

SUPREME COURT REPORTS [1984) 3 s.c.R.

been adopted by the court, Unfortunately, the Single Judge completely ignored the following .. important facts which have been indicated by me earlier:_;

(l) that.a bulk of the consideration money, viz., Rs. 3 Lakhs out of Rs. 4 Lakhs, was not paid by the appellant even until the time when tJie learned Single Judge had passed the order nor was it paid even when t.he mi!jter was in the Higli Court, and ·

(2) the leai=ned Single Judge overlooked the (act . that an . owner ajso has a right to impose certain conditions and in exercise of that he had imposed. the condition that the purchaser would have t(i buy the land subject to the pending litigation whereas in the offer made by the purchaser he had placed the onus on the owners to give him a good market able title free from litigation. . .

Thus, there was a clear.cut contradiction on this point wJiich doe1 not appear to have been notice<! by the Single Jlidge and per. ·

~Jll not oven by the owners because they were concerned more in getting the l\loney a1 early. as Possible. The Division Bench, therefor., acGepted the offer of the respondents and passed the followina Order!

"In the circumstances, we vacate the said two orders of the learned Judge dated.May 24, 1983 and May 26, 1983 and set.aside the impugned order.dated July 18, 1983 and direct as follows;

t. The petitioners shall pay sum of Rs. I, 25, 000/-to the Offidial Receiver on or before August I, 1983 and \here after 'PBY the balance sum of Rs. 3,75000 by August 29, 1983 to the Official Receiver, •

2. If the aforesaid s_µms are paid within tlie dates mentioned above, the Official Receiver shall sell the land of the disputed premises No. 7, Puffers Lane, Lilluah, Howrah to the petitioners and to their following nominees who have' been residing in the said premises .... "

 At page .90 in 'The Dictionary of Essential Quotations' comf ..

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SAbllURAM v. P. B. SARKAR (Fazal Ali, J.) $91

piled. by Kev.in: Goldstein-Jackson, John St0art Mill aptly observes A thus: • • " .. :the sole end for which mankind are. warranted, individually 01 collectively, in interfering with the liberty of action of any of their number, is self-protection. That the. only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His .own good, either physical or moral, is not a sufficient warrant." ·

. Striking; therefore, a just balance betwe, eil the claims put forward by the appellant and the respondents, we are convinced tliat the Division Bench of the High Court was. perfectly justified in accepting the offer of the respondents for the fo!lowing reasons: . .

(I) that the respondnts were prepared to pay much liigher amount than the appellant (i.e., Rs. 1 Lakh more) even at the very behest; the appellant did not pay the balance of . Rs. lakhs, which was a substantial part of the considera- . tion, at the earliest moment as stipulated in the .agreement

but depoited the amount only when the case came up before this Court,

(2) that pc!ssession being 9/!0th of title and the respon- . --" dents being in actual possession of the property would have had no difficulty at all in becoming .the owners without any further litigation.

(3) that the respondents were prepared to purchase tho property notwithstanding the"Iitigation obviously because if they had become the owners, no one could have challenged 'their title or possession .. ·

• In such a situation, therefore, in our opinion, the Division Bench of the Hi?h .ourt has done . substan.tial justice throwing aboard the techmca1It1es particularly for the reason that courts frown over a cmpl!rtus litigation or agreement evn though the same may be valid. Thus, by its decision the Division Bench got more money for the owners . on the. one hand and on the other sought to rehabilitate the 38 families of the respondent who had already built permanent structures.

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SUPRBMB COURT REPORT~

(!984) 3 S.C.R. ).-- ·

For the: reasons .given al; wve,' we find onrselves in complete agreement with the judgment of the Divisioµ Bmch of the High Court which we hereby affirm with the observations that since the ctates mentio.ned .in the Division Bench's Order have already passed,· we modify the said Order to this extent that as the respondents . have already paid a sum of Rs. 1.25 lakh. to the Official Re eiver

they shall pay him the balance of Rs. 3.75 lakhs by August. 15,

1984. and shall also insert a condition that they would be b ying . "/ • the properties riotWithstandirtgthe pending litigation, failing wh'ch the appeal shall stand allowed and the Order oflhe Single Judge stand restored; In the circumstance$ of the case, we make no order ·!Is \o costs .

V ARADARMAN,' J. This appeal by special leave is direCted against the order of a Division. Bench of the Calcutta High Court dated 25.7.1983 made in an application of respondents l to 4 for the .issue . of an interim order pending consideration of the appeal filed against the order. of a learned Single Judge of that High Court dated 18.7.1983 dismissing their application for beir.g impleaded as defendants in SuitNo .. 2024 of 1952 .ori the file of that High Court as also in the applicat•on of the Official Receiver, Calcutta High Cowt afi\.tm<'td by oue Ashok Kurnar Rai on 20.5.1983 and for staying and setting aside that. court's earlier orders dated 24.5.1983 and 26.5.1983.

Suit No. 2024. of 1952 was filed in. the Calcutta High Court on 28;5.!952 by '()Ile l'.ras.ad Nath Das, husband' of Malati Das and father of the then minors l'rabir Kumar Das and l'radeep Kumar

Ds. for declaration and other reliefs in respect of certain properties including.No. 7, Duffer:s Lane, Howrah, hereinafter referred to as the 'disputed property' against certain i>ersons including oue Jitendra :&:umar Das who is the second defendant inthat Suit. The Official _ Receiwr of the High . Court was appointed as Receiver in that suit on tl.8.1953in resect of ceriain properties includiQg the disputed property and he . took possession of the disputed propeUy on ;: 13.8.19_53.

An application was made in August 1982 for.sale ot .the

::..: disputed property and-.di_stribution of the sale proceeds amongst the_

:_ pa, rties ent!tled-thereto. . ()n l J. I0.1982 C. K. Banerjee, l. pas~~<l . ; ; ari.. order i, n that application for sale of the disputed proprty Ill

:c .theseterm8::

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r;:II~, ''ln that view of the matter .there will b'e an rder for sale in t.enns of prayer (a). In the event the properties are

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SADHORAM v. p, il. SARKAR (Varadrajan,,.J.)

sold by private treaty . the Official -, Receiver will call a meeting of the parties and obtain l, l; l.eir approval to such sale by private treaty. The proviSional. allottees or any other party to the suit would be entitled to bring intending pur- ·cJ:iasers for the said property. There will.also be an order in terms of prayer (b). In)he event the properties are sold the petitioner Ajit Kumar Das would be.paida sum of Rs; 10000

out of the sale .proceeds subject to adjustment against his share in the estate. The rest of the sale proceeds would be invested by. the Official Receiver in short term fixed deposit in a nationalised bank for a period not exceeding one. year and to be renewed from year to year until further orders of Co"urt."

It has to be s.tated that the le.acned Single Judge fixed an upset price of Rs. 3;50,000 for the disputed. property in that order. and there is no dispute about ; t. . The appellant Sadhu Ram Bansal offered a sum of Rs. 4,00,000 for.the property to the Receiver by his advocate's letter dated 20.U.19S2. enclosing a .draft "i'or Rs. 1,00,000 being one fourth of the amount and saying that f11e offer is subject to the vendors making out a good ai:tdmarketable title fre~ from encumberances and that the sale will be completed within 6 • months or &uch other time as may be agreed upon in favour of the appellant °ilr his nominees. Thereinafter, a meeting \'(as. held before,·

the Official Receiver on 12.1.1983 in presence of Prabir Kumar Das and Pradeep Kumar Das a.nd their Counsel as als6 }iiendra Kumar Das and others. That meeting was convened in. terms Ol a motion of a meeting dated 23. 12. I98i for deciding upon the steps to be taen re.garding the intending offers for _the sale of the disputed property. . In that meeting.all the three offers r_eceived by the .Official Receiver were placed before the parties for their consideration and it was det; ided that the offer of Rs .. 4,00,000 made on behalf of the appellant should be accepted in view of the payment- -of Rs. 1,00,00.0 by ban~ draft.

The Official Receiver thereupon accepted the offer of the appellant and communicated the acceptance by hiS letter dated 13.1.198! and requested the appellant to deposit the .balance of Rs. 3,00,000 at an early date, In view of Court's . order dated 1.8.1983 another meeting was conveed before the Official Receiver on 9.8:198) and the parties to sui.t agreed in that

meeting"to sell the disputed property to the appellant for Rs. 4,00,000

inview of his prior payment of Rs. 1,00.000 by bank draft and sei:tdfog the balance of Rs. 3,00,000 to ihe Official Receiver on 8.8.1983.

Subsequently on the application of the Official

stiPRru.iii cotlR(ruiPORTs

(!984) 3 S.C.R • • A Receiver,· P. Banerjee, J. of the Calcutta High Court passed an

G 0

order dated 24.5.1983 .directing the police to remove respondents

I to 4. from th~ disputed property and put the Official Receiver in possess10n thereof on the allegation of the Official Receiver that they' had trespassed .into the property a few months earlier .. That.order was modified orl 26.5.1983 as regards the designation of the Deputy InspeClor General of Police to whom also the earlier letter dated 24.5.1983 was directed.

On 22.6.\983 respondents 1 to 4 nanieiy, Putin Behari Sarkar, Manik . Seal, Gopinath Sarkar and Sudhansu Bimal Dey moved the. Calcutta High Court for being imple.aded as defendants 1n Suit No. 2024 of 1952. (wrongly mentioned in that application as Suit No. 2024 of 1982) as well as m the application of the Official Receiver affirmed by one Ashok Kumar Rai on 20.5.1983 and for stayiqg and setting asicie the said orders dated 24.5.1983 and 26.5 1983 as stated above .. In. that application respon dents I to 4 alleged that they came to know from the police about.· the orders dated 24.5.1983 and 26.5.1983 on 18.6.198:!, that Suit No. 2024 of 1982 (mistake for Suii No. 2024 of 1952) had been filed by Prasa, d Nat.h Das on 28.5.1982 (mistake for 28.5.1952),' that the Official Receiver had been appointed on 11.8.1982 (mistake for 11.8.1952),. that the Court I1as granted leave to t)le Official Receiver to sell the. property either by public auction or by private ' tre; ity subject to a reserve price of Rs. 3,50,000 and that the offer of Rs. 4,00,000 made by the appellant .has been accepted and .one fourth of the amou.nt has already been paid to the .Official Receiver Respondents 1 to 4 further stated in tbat application that they are residing on the diputed property w.ith their families under a licence since 1975 and have constructed pucca huts there<)n and that with knowledge of their continuous possession of tae property as licencees since 1975 the paities to the suit have filed t)le suit among themselves withont impleading them (respondents 1 to 4) as parties knowing fully well that they would not get pzsession of the same if they filed the suit against them. ·

'fhls application of respondents I to 4 was opposed by the appellant through a counter-affidavit o~ his son Sajan Kumar . Bansal.

Jt was stated in that counter-affidavit inter alia that in the application filed for grant of leave to the Official Receiver to sell the disputed .., property it was alleged that it was under the unauthorised anti

illegal occupation of one Kamal Hosiery. claiming to be tenant of the property on a rent of Rs. lOb/per month for a long time and that no rent has been paid to or collected by the Official- Receiver in the last 20 years, It was also stated in that counter-affidavit that in

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SA[)I!URAM V. P. B. SARKAR (Varadara}an, J.) . 60i.

the draft agreement for sale it is stated there is litigation for the" last 20 years between the Official Rceiver on the one hand and Kamal Hosiery on the other and that Secrnd Appeal No. 1267 o(

1982 filed by Kamal Hosiery against the Official Receiver was pending in the Cakutta High Court. Denying that there was'llny such licence as claimed by respondents l to ,;(.it was stated in that counter-affidavit that in the p0 ceeding~ taken by respondents 1 tg 4 under s. 145 of the Code of Criminal Procedure in tlie Court of the Sub-Divisional Executive Magistrate, Sadar,· Howrah respondents l to.4 claimed to have been in possession of the disputed property for the last 15 years which will take us to 1968 and not 1975 It is

that application of respondents 1 to 4 for being impleaded as parties 0 to Suit No. 2024 of 1952 and for staying and setting aside the High ..

Co .1rt's orders dated 24.5.1983 which came up before Monjula !lose, J. 'Fhree points were urged before that learned Judge. .

 The first point urged before the leared Judge was •the alleged deliberate omission . of "the. parries to Suit No. 2024 of 1952 to imp

!ad respondent> l to 4 as parties with the object of getting a receiver appoil'ted and having the property sold behind their back. The learned Judge rejected that contention of respondents I to 4 in these terms :

"I accept the contentions of the. learned Advocate for the purchaser Sadhu Ram Bansal as .also the co.ntentions of the Learned Advocate for the leamd Official Receiver that deliberate mis-statements hav<: been made in the petition with. a view to impress upon the Court that the suit was filed without impleading the petitioners (respondents I to 4) as parties so that possession could be obtained .and an order of appointment.of Receiver and leave to sell the property could be obtaintd behind the back -0f the petitioners (respondents I to 4). It is significant that the proceedings were instituted in 1952 (Suit No. 2024 of 1952) and. the Official Receiver was appqinted as .Receiver as fa.r back as in 1953.

Since that date te suit property is irt the possession of the Official Receiver as offi.cer of the Court. . The petitioners , (respondents l to 4) claim to be in pdssession since !Q75 with the leave of one Malati Das and Jitendr11 Kumar Pas.

It is significant that the said Mala ti Das . was brought on record only in the year 1977 after the death of her husband and in any event no leave or lice.nee coulCI have been gran ted by either Malati Das or Jitendra Kumar Das wJ1en th¢

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SUPREME COURT RtPORtS

(1984) 3 S.C.R.

Official Receiver was; in poss'ession of the suit premises. On 21.6.,1983 Malati Das appeared in Court and denied giving any leave to any of the parties to remain in possession' of the suit premises. Falsity of the. petitioners' case 1s thus .prima facie apparent and it appears that they have no locus standi to intervene in this proceeding and eek any order to be adde.d as party-defendants to the.suit and/or any other proceeding in connection therewith." · .

The second point urged before the learned Single Judge as . . as regards the validity of the orders dated 24.5.1983 and 26.5.1983 ·

made for delivery of possession of the property to the Official Receiver with police aid and witho.ut notice to respondents 1 to 4; . It was contended before the Ie;1rned Single Judge on behalf of respon- dents l to 4 that those orders made behind the back of respondents

~ 1 to 4 \1-lf o would be affected thereby are invalid in law and should, therefore, be set' asid"' . The learned Judgc rejected. that contenti!?n in these tems : .

"In any event the decision reported ill A.I.R .. 1957 Calcutta 252 is an authority for the proposition.that the Court has unfettered discretion al)d ample powe1 to do jusiice The Court is also fortified in its view by the decision in Hira Lal Patni v..

Mnokaram Setlziya, reported in A.I.R. 1962 SC 21 where tlie Court viewed that under Order 40 .Rule I the Court may remove any perso~ who interferes or intermeddles with the Receiver's po.ssession In lhy view . different considerati.ons apply in cases where property In the possession of Court through its officers are sought to be the Receiver of the Court is sought to be interfered with, and the cases cited are distinguishable.. To iny mind the orde.rs passed on .the 24th and 26th May, 1983 are orders pa'ssed by tl; le Court in the course of the administration of the estate through the agr11cy of the Receiver and the said' orders were passed at the instances ofthe Receiver in the circumstances stated in the affidavit affirmed by Ashoke Roy on 4t!i July, 1953 It in apparent. from paragraph 5 (vii) .that certain persons had entered _the. premises on the 14th

M"rcli, 1983. requiring the Official Receiver to take steps . with the police authorities and it appears that his lette1s ·

wnt unheeded requiring an application to be made for: seeking direction JJpon t_he police auth?rities to rinove he squatters and thereby assistance sought m the admm1strat1on

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SADFlURAM v. P. B. SARKAR (Varadarajiin, J.) 003

of the estate by the Receiver. The case reported in A.LR..

-~A 1962 SC 21 Hira Lal Patni v.' Moakaram Sethiya is an authority in support of this proposition.• The order for police help th11s obtained cannpt be said to have been obtained improperly or by suppression of any fact."

The third point urged by respondent l to 4 before the learned Single Judge was that they were prepared to offer a sum of Rs. 1,00,000 more than the amount offered by the appellant and that the property should be ordered to be sold to them. The learned Single Judge rejected that contention in these terms_: ''

''The thircl.point .... has no merit and is not requir.id to be considered inasmuch as the Court by its order dated l l th October, .1982 directed that the Official Receiver will sell the property by public auction or private treaty to the. highest . offerer or offerers subj_ect to a reserve price or' Rs. 3,50,000

and had. directed that in the event the property is sold bY private. treaty the Official Receivenvould call a meeting of: the parties and obtain approval for such sale. It appears . from the records. of the minutes of the Receivds meeting held on 12.1.1983 that in the presence of parties each one

of them supported the sale to M/s: L. P. Aggarwal's client, namely, Sadhu Ram.Bansal and as such the Official Receiver accepted_ the offer of the said Sadhu Ram Bansal, after. the parties considered the price offered to be adequate. The case reported in A.LR !97() SC 2037 is an -authority in . . support of the propnsition that once. a Court comes to . a conclusion that .the priceotreed is adequate no subsequent higher. offer can constitute a valid ground for .r£fusing confirmation.

To my niiod although the transaction in suit does not require to be confired as the Official.Receiver was invested with the direction given on II th October, 1982 the

s1id decision with the approval of the parties cannot now be te-opcned and/or reagitated."

For tlie above reasol)~-the learmd .. Single Judge dismissed. the petitiQJ) of respondents 1 to 4 witlt costs.

Against that order res: ponde!lts I to 4 filed an appeal before the Division Bench.

In that . appeal respondents' I .to 4 .made an application for an interim order, and it came up for considei; ation before the Division Bench consisting M. M. Dutt and C. K. Ilanerjee,.JJ. After setting out some facts foa1ing to the application filled by respondents 1 to 4 for being

664 sb~REME coukT REi>oRrs [l <}84] 3 s.c.R.

. A added as parties to Suit No. 2024 of !952 as well as in the. application of the Official Receiver and for staying and setting aside the High .Court's oi; Pers dated 24 .. 5.1983 and 26.5.1983 referred to above, what. M. M. Dutt, J. whospoke for the Bench has stated in the order impugned in this appeal is this: ' ·

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"At the bearing of this application Mr. Som Nath Chatterjee,. learned Counsel appearing on behalf of the petitioners has offered to purchase the disputed land at a sum of Rs. 5,00,000..

It. has also been offered by him that .the petitioners would deposit ih Court a sum of Rs. 1,25,000

being the '25 per. cent of the sal'e . price within a week and pay the balance slim of Rs. 3,75,000 within a month 'thereafter. •

The application has been vehemently opposed by the respondent No. 2, the purchaser. Mr. A. C: Bhabra, learned Counsel appearing for respondent Nb. 2 submits that as . parties themselves have agreed to sell the disputed land to ·

the respondent No. 2 this Court has no jurisdiction to override the said agreement and direct the sale of the disputed land t3 the petitioners. fo our opinion this contention is without substance: The sale has not yet been completed.' AS

stated already respondent No. 2 paid a sum of Rs. 1,00,000

being 25 per cent of the sale price some time .in January 1983.and since then respondent No: i has not paid the balance, .sum of the sale price. If the sale bad. been comple ted their is no question of any offer being made by the petiiioners for the sale of the disputed land to them. More- - over; the sale will be subject to the approval of the Court . . As the sale bas not yet been completed there is no scope for the approval of the sale.

On the other hand, we find that 38 families have been residing in the disputed land. It is submitte.d by Mr. ]Jhabra that .those persons are all trespassers without any vestige of title. It is,· however, the case @f the petitioners that they have been residing in. the disputed land by making certain structures under -the leave and licence of two of the owners of.the said premises although one of the owners, Smt.

Malafr Ds who is alleged to have granted the licence, has denied granting of such licence. If the disputed land is sold to rosp,111dcnt No. 2 then 38 families who have been resi-

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SADl!URAM v. P. B. SARKAR (Varadarajan, J.)

'60S

ding thereon. would be evicted with police help. 1 n our A, opinion the Court should d_o social justice and in doing such

justiG~ no technicality of law will stand .in its .way. Social justice re9uires that the disputed land should be sold to the • petitioners ; ind otlier residing on the disputed land. More over, the petiti'oners have offered to pay a price of .

Rs. 5,00,000 tha_t is to say, Rs. 1,00,000 more than the o'ffer B of the respondent No. 2. In the circumstances, we vaQate the said two orders of the lea.rued Judge dated 24.5.1983 an<l

26.5.1983 and set aside the impugned order dated July 181 19e:· •

The learned Judges directed. respondents 1 to 4 fo pay to the Official Receiver a sum of Rs. I.25,000 on or befor"' 1.8. 1984 and the balance f. Rs. 3,75,000 by 29.8.1983 'and ordered that on such payment the Official Receiver shall sell the disputed property to respondents 1 to 4 and their 34 nominees mentioned in the impugned order without any other descriptive particularsand have observed that in the event of default in payment of the sum of Rs. 5,00,000 as aforesaid their order will stand vacated and the learned Single Judge's.order dated 18.7.JgaJ shall stand confirmed.·

Thus it is seen that the learned Judges ofthe Division Bench have set aside the impugned order ofthe learned Single Judge dated l8.7.1983 and directed the sale of the disputed property to 'respondents I to 4 and their 34 nominees subject to the . condition that respondents 1 to 4 deposit a sum.of Rs. 1,25,000 by l.819_83'and the balance of Rs. 3,75,000 by 29.8;1983 towards. the sale price of Rs. 5,00;000 offered by respondents 1 to 4 mainly on the ground of social justice and incidentally having regard to the fact that sale has not yet been approv_ed by the Court _without however deciding the question whether approval of the Court to complete the sale of the disputed property by the. Official Receiver to the appellant by private treaty subject to the approval of the parties which has been given on 12.1.1983 and 9,8.1~83, as stated .above; is_necessary or not. They ' have at the same . time observed m their impugned order that the order dated' 18. 7 .1983 of the learned Single Judge. will stand con, firmed \f respondents I to 4 fail to deposit the SU!ll of Rs. J,25,000 oy I.8.1983 and the balance of R, s. 3,75,000 by 29.81983. The learned Judges of the Division Bench have thus left in tact the order dated 18.7.1983 of the _learnd Sin&Ie Judge in the_ eyent of respon

dents I to 4 not takipg advantage of the opportunity given to them in the name of social Justice to purchase the disputed property for

F ,

.. 606.

- ' SUPREME COURT REPORTf (1984] 3 s.c.1t

Rs. s, o0,000 by paying that amount in two instalments as aforesaid.

Hence this appeal b)' special leave.

With respect to the learned Judges of the Division, cBench of the High Court lam at a loss to understand ho~ their order which virtually disposes of the apPeal filed by respondents l to 4 against the order of the teamed Single Judge dated 18.7.1983' declining to add them as parties to Suit No; 2024 of 1952 as well as in the application moved by the Officbl Receiver in May 1983 and to stay and set aside the orders dated 24.5.1983 and 26.5.1983 and direct.s the Sale of the disputed property to respondents 1 to 4 and their 34 nominees on payment of the. sum of Rs. 5,00,000 in two instaJments as mentioned above could be made in an application which has been filed. by respondents .I .to 4. for on~ an interim prder pnding disposal of .the main appeal filed against the order .of the learned Single Judge dated 18.7.1983. I also fail to see what remains to be done by. the le.rried Judges of the Division Bench in the main D appeal filed by respoudents 1 to 4 against the learned Single Judge's order dated 18.7.1983 after the learned Judges of the Division Bench have passed the order impugned in this appeal before this Court. 'Fhat appeal before the learned Jndges of the Division Benell has now .become totatly redundant and unnecessary; for what responde, nts 1 to 4 wanted has been ordered 'in their favour vtz., etting aside the orders daied 24.5~1983 and 26.5.1983 which is one of the prayers in tfte application made before the learned Single Judge and the sale of the property in their favonr and in favour of their nominees for R, s. 5,00,000 subject to payment of that ramount'in two instalments . within the time mentioned above, a relief which was not even prayed for by them in their application before the. learned Single Judge but' F . granted even before they. had been imp leaded as parties in .the suit

or i.n the application filed by the Official Receiver in May 1983, which prayer was refused by the learned Single Judge and has not . been granted even by the learned Judges of the. Division Bench in ' their order made in the application filed only for interim relief. This. must strike.any one as an extraordinary feature in this case, and I . therefore think it must be noticed before proceeding to consider the merits of the case in the light of the arguments advanced by Mr.

S.S. Ray, Senior Counsel apparring for the .appellant and Mr. G.L..

Sanghi., Senior Counsel appearing for respondents 1 to 4 in the' appeaL Another extraordinary .feature in this case is that in.the name of social justice the learned Judges of the Division Bench of

~ • the High Court have conferred the .benelit of purchasing the dispute!l property on rank trespassers, not 01diilary trespassers in respect of. ·

:.• ..

' > -·

SADHURAM v. P. lJ, SARKAR (Varadarajqn, J.) 607

proper.ty in the possession of some .. Private individual who is not .. vigilant about his.rights but trespassers in respect of property :W.ich. ·

is in custadia !egis through a Receiver who was vigilant enough to mov ethe .Cour~ for a direction that the police to remove respondents 1 .. to 4 from their unlawful possession of the disputed property and .. put him in possession thereof after his own letters to the police fotT help in that behalf did not evoke the necessary response. I will now; proceed to consider how respondents 1 to 4 are rank trespassers in respect of the. disputed. property .which is in custodia legis and are contemners who are liable to be committed for contempt. and not persons on whom any benefit could be ·•conferred by any Court of law.

Mr. Ray submitted rightly that respondents 1 to4 are ra.nk trespassers iri respect of. the disputed property which is in custodia /egfs. The case of respondents 1 to 4 is that they .became licencees in respect of the property in 1975 under a leave granted to them by Malati Das and Jitendra Kumar Das. This case has been found by Monjula Bose; J. to be false having regard to.the fact that Malati Das came on record a• a leaal representative of her husband Prasad Nath Das only in .1977 and she appeared in Court and denied jlaving granted any such licence to respondents 1 to 4. There is no documentary evidence about the alleged grant of the licence ... If at all, it could only have.been oral. Respondents I to 4 have not examined Jitendra Kumar Das to prove th• alleged. grant of the licence.

Jitencira" Kumar rias is a party to the approval granted on 12.1.1983 and 9.8.1983 for the sale of the disputed property by the, Official Receiver to the appeHant by private treaty. It is. impossible that such a valuable property has been a11owed to be enjoyed by respondent 1 to 4 for no benefit or consideration to the . owners by ony of the owners of the property.' Respondents l'tq 4 had n<;> consistent case about when the alleged leave . was granted. In the present proceedings their stand is that it was granted in 1975: But ih the proceedings before the Sub Divisional Executive Magistrate-, Sadar; Howrah under s .. 145 Criminal Procedure Code they stated that the licence was granted 15 years prior to the date of that petition which will take us to 1968 as stated above. Therefore, faciually the alleged grant of licence does not appear to be true as has been found , by Monjula Bose, J. Mr. Sanghi on the other hand, contends that the "right" claimed by respondents 1 to 4 has not been gone into-or determined and that they are entitled to the equitable relief granted to them by the learned Judges of the Divisio.n Bench on the basis of their admitted posseio!l of the propertr. The contention that.theµ-

(1984) 3 S.c.R.

A position has not been determined by the learned Single Judge is not

C9frt. . .

In paragraph 801 and 808 at pages 403 and 407 of Halsbury's Laws of England, }'ourth Edition, Volume 39 we find the following

passage:

/ "A rcceiveds a person appointed for the collection or protection of property. He is appointed either bf the court or out of court by individuals or corporations. lf he is appointed by the court, he is an officer of-the court deriving his authority from the court's order. If he is appointed out of court, he is an agent and has such powers, duties and liabilities as are defined by the instrument or statute under which he i's appoin\ed and derive from the general law of agency ...... A receiver appointed by the. court is ip no. sense an agent or trustee for the party at whose instance the appointment is. made. He is an officer of the court appointed for the benefit of all the parties to the action, and 'their rights among themselves are not affected." . ' .

•In Kerr on Receivers, Fifteenth Edition, we find the fo]Joing J, assage at page 155: ·

"A person who dist11rbs or .interferes with the posse ssion of a receiver is guilty of a contempt of court, and is liable to be committed. In extreme or aggravated cases, the court will, for the purpose of vindicating. its authority, order a committal. The court is generally tatisfied with ordering the party in conteµipt to pay the costs and expenses occasi

oned by his improper conduct, and also the costs of the application to commit." ·

Th1s Couft has observed in Everest Coal Company (P) Ltd.

v. State of llihar &Others (1l thus: ·

"When a. court put9 a Receiver 'in possession of property, the property comes unde'r court custody, the Receiver being merely an officer or agent of the court. Any obstrlit:tion or interference with.· the court'& possession sounds in contempt of that court. Any legal action in • respect .of that property is in a sense such an interference.

\I) (1978] 1 &, C.R. 511 at F~ •..

. .•

- ...

" .

SADHURAM v. P. a SARKAR (Varadarajan J.)

and invites the contempt penalty of likely in validation of the. su; t or other proceedings."

It is not disputed that after the institution of Suit No. 2024 of 1952 in the Jfigh Court, the Official Receiver was appointed as Receiver in respect of the d:sputed property on 11.8.1953 and that he took possession of the same on 13 .8.1953 and it continues to b~

in cu:; todia /egis through the Receiver since then.

This has been found by M:onjula Bose, J. in the order dated 18.7.1983. When-the

property is in cusiodia "tegis neither Malati Das nor Jitendra Kumar Das, who may have rights of ownership in the property, could grant any licence in 1975 or at any -time after the, Receiver had been appointed and possession had been' taken in August 1953. Even 'if there was such a grant of licence it is invalid in law. Even if possession of the property had been obtained by respondents 1 to 4 pursuant to any such grant oflicence it would, in law, be only that of trespassers. Therefore, even on the admitted case of respondents -

1 to 4 that their possession_ started in 1975 as !icencees, in the light of the the unnispnted fact that the Receiver got into p_ossession of the property as far back as in August 1953 under the orders of _the Court, -the possession f respondents l to 4 could only be that of trespassers; They are trespassers who are liable to be committed for contempt of the Court inasmuch as they are trespassers in respect

of the property which is _in custodia legis. Their_ possession and conduct have to be frowned upon by the Court and riot treated as grounds for conferring a benefit on them to purchase the property a/-beit for a higher amount than the. amount for which the Official Receiver has 11greed to sell the property to the appellant with the approval of the parties to the suit. The learned Judges of the Division Bench have treated thi3 illegal acf of trespass of respon<lents

I to 4 on the property which is in custodia ief(is as the -ground for conferring tile benefit on them in the name of social justice, and 1t .. is this order which Mr. Sanghi, with all his vehemence, wants this Court to confirm. In my view itwill be totally wrong to do so.

It was conceded by Mr. Sanghi that while rendering social justice no violence to any established and well-known principles of law could

be committed. In these circumstances, I am of the opinion that no relief could be granted to respondents I to 4 who are trespassers in respect of the property in cuitodia /egis on the basis of their wrongful possession which is a continuing act of contempt of the .

Court. ·

Mc Sani invited thi~ Court's attention.to the Calcutta High

6IO

'..\

SUPREME COURT REPORTS [1984] 3 s.c.R. • .

Court's ord.er dated 11.10. 1982 for the sale of the disputed property particularly to the portion thereof which says that Rs. I0,000 out of the sale proceeds should be paid-to Ashok Kumar Rai subject to adjustment against his share and that the balance should be invested by the Official Receiver, in fixed dep'<l'sit every time for a term not exceeding one year.

A sum of Rs. 1,00,000 was sent by a ba_nk draft to the official Receiver along with the offer made on behalf of the appellant for purchasin°g the property for Rs. 4,00,000. According to the offer made in that letter the appellant had to pay the. balance of R~. 3,00,000 within six mo'nths from 13 .1.1983.

Mr.

Sanghi invited this' court's attention to the nonpayment of the balance o.f Rs. 3,0_0,000 until it was sent to the Receiver on 8.8. 1983 in spite of the Receiver 'asking for its paymei1t at an early date by his letter !lated 13.1~983 by which h{had communicated the approval of the parties granted on 12.1.1983 for the sale of the disputed, property to the appellant for Rs. 4,00,000 and submitted that the appellant has hot complied with the spirit of the order for the sale of theproperty by private treaty. Mr. Sanghi next invited this Court's attention to the fact that in the parties' meetmg held before the . Receiver on 12.1.1983 to consider which of the3 offers made to the

Ol!icial Receiver could be accepted Mr. D.N .. Mitra, Advocate for Prabir Kumar Das and Pradeep Kumar Das ha\! stated that they have no objection to the sale subject -to tbe appellant agreeing to purchase the property subject_ to pending litigatio1;1. The pending litigation referred to. by Mr. Mitra evidently refers fo the litigation about the property pending in Second Appeal , No. 1267 of 1982 filed in the Calcutta High Court by Kamal Hosiery against the Official Receiver. The appellant's learned Counsel" had earlier offered in _his letter dated.20.12.1982 to purchase the property for Rs. 4,00,000 subject 'to the vendors making out a good and marketable title free from encumberanes. The Official Receiver hits not referred to that condifion mentioned by the , Advocate for Prabir Kumar Das and Pradeep Kumar Das that the acceptance of the offer of the appellant is subject' to his agreeing to purchasethe property subject to the pending litigation. but he has merely stated in his letter dated 13.1.1983 that the appellant's offer to purchase the property for Rs. 4,00,000 has been accepted and that he should pay the balance of Rs. 3,00,000 at any early date. The parties bad accepted the appellant's offer even in the subsequent meeting held on 9.8.198) after the appellant.had sent the balance of Rs. 3,00,000 on 8.8.198~ to the Receiver. Mr. Sanghi submits that there was a counter-offer

by reason of the statement made on tehalf of the two plaintiffs

}'rabir Kul!'ar ras an<,1 Pr2deep Kumar Pas ip the meetin~ ccnvene~

i .

SADHURAM •. P. B. SARKAR (Sabyasachi Mukhaiji, J.) 611

by the receiver on 12.l.1983 that the appellant's offer should be accepted subject to the condition that he will purchase the property subject to the pending litigation and that ther~ should have been a fresh acceptance by the appellant thereafter, and he has not done ' so and therefore there . is no concluded contract.· There is . no such conditional acceptance as the condition required by Prabir Kumar Das and .Pradeep Kumar Das has not been specially communicated to the appellant by the Offici~I Receiver for his acceptance.

Therefore there is no merit in this contention of Mr. Sanghi:

. Mr. Sanghi hext submitted that respondents 1. to 4 have ojfered Rs. 5,00,000 for the disputed property and that since the owners of the property stand to gain a sum of Rs. 1,00,000 by accepting that offer, the order for sale of the property made by the learned Judges of the Division Bench in favour of the respondents 1 to 4 and" their 34 nominee.s should be confirmed.

Respondents 1 to 4 are trespassers in respect of the property which is in custodia ,/egis and they are in cori.tempt of the Court.

They cannot be allowe.d to continue to be in contempt and urge it

as a ground for obtaining the benefit of the sale of the property in their favour, If the appellant has not complied with any condition it may be a. ground for the owners and the Official Receiver not to accept his offer and refuse to sell the property to him and not for respondents . 1 to 4 to raise any objection. The offer has been accepted rightly or wrongly more than once and therefore the appellant may have a right tb sue for specific• performance of the contract on the basis of that acceptance 'by the Official Receiver

given with the approval of the parties. The same is the position in regard to the delay of about a montl) in paying, the balance. of Rs. 3;00,000 by the appellant. In Kayjay lfldu.<tries (P) Ltd v. Asnew Drums (P) Ltd. & Other; (1l it has been held that tl:ie executing court had committed no material irregularity in the conduct ot the sale in accepting the highest offer and concluding tl:ie sale at Rs. 11,50,000 though the market value of the property may be over Rs. 17,00,000. In Jibon Krishna Mukherjee v. New Bheerbhum Coal Co. Ltd. & Anr.

(1) it has been held that the sale held by the Receiver appinted by the Court is not governed by the provisions' of Order 21 rule 89 of the Code of Civil Procedure which enables

te persons specified in sub-rule 1 to have the sale held in execution

(1) [1974] 3 SCR 678

' (2l. [1960] 2 SClR 198

(1984]3 S; C.R. y

proceedigs set aside on the two onditions therein mention.ed being satisfied, namely, as regards ihe depqsit of poundage, balance of decree amount due etc. In !hat case, .as in the present case, the Receiver was given liberty to sell the property by private treaty or by. public auction. In rarinikamal Pandit <h Others v.

Prafulla Kumar Chatterjee (') we find the following observation :

"The procedure envisaged for, sale generally and sale of an immovable property under Order 21 is sale by public . auction. Sale by a Court through the Receiver appointea ·

by Court is not contemplated under these provisions ...... A Receiver is appointed under Order 40 Rule l and a property, can be sold by the Receiver on the direction of the Court evim by private negotiation."

.Jn the .present case the property has been agreed to be sold by private treaty and as required by the order made for the purpose the approval of the parties has been obtained by the Official Receiver who has been authorised t6 sell the property either by public auc'tion or by private . treaty.

The Court does not come into the picture in such a case and there is 'no need for the Court to approve or confirm such sale.· The parties who are sui juris must be deemed to have known their interest best when they chose to approve the sale of the property for Rs. 4,00,000 in favour of the appellant not with standing the fact that respondents .l to 4 had offered to purchase the property for Rs. 5,00,000 therefore, in my view the learned Judges of the Division Bench had no right or justification to alter or modify the earlier order made for the sale of the property by even private treaty, which ha.d become fiqal, or to hold that subsequent offer made by respondents . 1 to 4 to purchase the property fot Rs. 500,000 should be accepted merely because it appears to be advantageous to the owners of .. the property in the name of social justice. I am unable to pursuadc myself to hold that the benefit claimed on behalf o1 respondentS 1 to 4-J would not call it a right, for there is no corresponding obligation-.cali. be equated with or even brought anywhere near the social justice mentioned in the preamble of our Constitution.

For these reasons, I am of the opinion that the learned Judge& of the. Division Bench . were not right in interfering with tho well considered order of the learned Single Judge Monjula Bose1 J. by

(1).(i979) 3 SCR 340

r *

SAD!lURAM v. p, B, SARK>':R (Sabyasachi Mukharji, J,) 613

their order made in the application cif respondents 1 to 4 for a mere interim order pmding coasidrtion of the appeal preferred bj them

gains! that order of the foarned 3ingle Judge d1ted 18.7.1983 in the manner done by them which has rendered the nnin. appeal itself redundant and wholly u'rnecessary as stated above. The impugned

order of the barned Judges of the Division Boncli which purports to stand on the fragile and imagiriary prop of social justice has no legs .in law to stand and c11mot bi allowed in law. to >tand. I would, therefore; allow the appoil and set aside the order of learned Judges of the Division Bench and restore that of the learned Single Judge' dated. 18.7.1983 with costs quantified at Rs. 3,000 and pay- able by respondents 1 to 4. ·

SABYASACHI MUKHARJ!, J, With respect I agree with the order proposed by Brother Fazal Ali. In view, however, of the question posed in this case, I would' like to recapitulate the facts as I view these and to state the principles upon wliich I would like to rest my

concurrence with the order proposed. Though .the controversy arises in a long pending litigation, the question bfore this Court lies . within a short compass.

Premises No. 7, Duffers Lane, Hpwrah, comprising of about six bighas of land is nearabout Calcutta. It formed part of the .estate of one late Radha Kanta Das, since deceased.

The premises is hereinafter called "the disputed premi>es". Suit No. 2024 of 1952 was filed in the High Court of (;1lcutta on May 29, 1952 by one

Prasad Nath Dasc!aiining it decree for construction of the will and . testame11t of the sai.d Radha Kanta Das since deceased and for

dclaration that the purported will dated May 22, 1952 executed by one Jitendra Kumar Das, since deceased in respect, inter a!ia, of the dispute.ct premises was invalid, void and for other reliefs. The

Official Receiver was appointed receiver over certai.n properties belonging to or alleged to have belonged to that estate including the disputed premises on or about A.ugust II,.1953. Some oftbe parties lo the suit, namely respondents Nos. 13, 14 and 15. to this appeal took out an application for granting leave to the Officer Receiver to sell the disputed premises, as some of the parties required immediate funds. An order was passed on October II, 1982 by a learned

Single Judge of the High Court directing the Official Receiver to sell the disputed premises either. by a public auction or private treaty to the higl:icst offerer subject to a reserved price of Rs. 3,50,000 and the order further directed that "in the event the property is sold by private treaty, the Official Receiver, High Court, Calcutta, would call a meeting of the parties and obtain their ·.approval to such sale by private treaty. The. provisional al!ottees or any other party to .

(1984) 3 S, C.R. r

A the suit would be entitled to bring intending purchasers for the same." On Dece.mber 20, 1982 by a letter, an ffor was made to the Offiicial Receiver for purchase of ihe said premises for Rs. 4,00,000 . . on behalf of the present appellant. The said letter contained the following :-

"We muke an offer for purchase of the above property for Rs. 4,00,000 (Rupees four lacs) subject to the Vendors' making out a good and marketable title free from encumbrances."

A Bank draft for Rs. 1,00,000 in favour of th~ Oflkial Re'ceiver was also sent along with it.

At a me, ting held on Jan. 12, 1983 the said off<; r along with two bther offers were coasiderod by the ; epr; sentativcs and advocates apparing for the different parties in the suit . . It appears that parties more or les3 agreed that the offer received on behalf of the appellant was best but one Shri B.N. Mitra, represen- D ting his client observed that it might be accepted subject to the appellant's agreeing "to purchase thesame land. with pendin, g litiga- . tion in respect of the said property." It may be mentioned that the terms in which the Ollicial Receiver intimated by letter dated January 13, 1983 addressed by the Official Receiver to the advocate of the present appellant contained the following :-

E "This iS to inform you that your clien.t's offer of Rs. 4,00,000 for the purchase of the above premises has

• been accepted.

You are, therefore, requested to.advise your .client to F deposit the balance sum .of Rs. 3,00,000 at an early date."

It would be relevant to bear .in mind.that it was not communicated that the acceptance of tile offer was subject to the appellant"s agreeing to 'purchase the land with pending litigation in. respect of the said land. The offer of the appellant which had been originally communicated did not contain any condition that the offer to purchase was sulijct to pending.litigation. It was, therefore, nrged .before us that there was nq acceptance of the offer by letter dated January 13, 1983 because the acceptance was with a condition. It was urged that .it was really a co!lnter offer. The Division Bench of the High Court came to the conclusion that there was no concluded contract, Such a view is a view which is possible to take, and as such the Division Bench proceeded on the basis that there was no concluded

r •

. '

SADHORAM v. P. n .. SARKAR (Sabya.siach Mukhar}i, J,.) .615

bargain between the appellant alrd the parties r.el?resented by the receiver. It may, however, be mentioned that in February, 1983, it is stated, certain documentswere forwarded to the appellant's advocate. It may be mentioned that in the letter referred to hereinbefore dated December 20, 1982, the appellant had also stipulated that the sale be completecfwithin six months or such further exten-. ded time as may be agreed upon in one or more lots by one or more sale deeds in favour of the .appellant or his nominee or nominees.

T, lie letter dated January 13, 1983 by the Official Rccei.ver also requested the appellant to deposit the balance su'!! at an early date.

It may be mentioned that the said balance sum was deposited after August, 1983 after the special leav~ was granted in this matter by this Court. It is also significant to bear in mind that though the application for sale of the property in question was made because the parties were in urgent need of.money, there does not appear to be any document or letter aking the appellant for the money.

It is alleged that in February, 1983,' fire broke out in the factory. adjacent to the premises in question and ftre brigade men had entered into the premises by breaking a portion of the well to get access to'thi: pond inside the disp\ltcd premises. It is the case of the appo\lant that on March 14, 1983, the responcfents nos. 1 to 4 along with some miscreants bad forcibly entered into the disputed premises. This, however; is disputed by the contesting respondents nos. I 'to 4 herein" out of whose application to the High Court for intervention, the order impugned was passed by the Division Bench and which is the subject matter of this appecial leave, they in their application asserted that they had come to know about the appointment of the. Official Receiver from the pol; ce and they further came to know about the offer made by the appellant for the purchase of the premises in dispute. The said respondent alleged that they along with 38 families with the leave and licence of one of the co.-owners were residing in the premises i11 question since .1975 and had constnictcd pucca h.uts and structures and in spite of the same, according to tee said respondents, the appemnt did not inform the court of· . the said fact before obtaining police help against them. The said

respondents claimed that they were licencees under theoriginal

owners, Smt. Malati Das and Jitendra Nath Da~; in 'certain specified ' plots mentioned in their application. They further alleged that on May 2, 19~3. they had come to know that the appellant had obtained ex-parte order from the Sub-Divisional Maj>, istrate (Executive) directing the Superintendent of Police to restore possession of the premises in dispnte by arranging police help.

Th.e applicants had

. , ,•

SUPREME COURT RliPORts

[1984] 3 S.C.[{,

filed an application before the learned Sub-Divisional Magistrate under Section 145 of the Code of Criminal Procedure with a prayer to recali the ex-parte order mentioned hereinbefore and to call for a: report from the local police regarding posses1ion of the said applicants in the said disputed prembes. The Sub-Divisional Magistrate, it was alleged, did not pas> any• order and was pleased to direct' to put up the said application on May 7, 1983. T.hongh no

formal order was passed the said application was kept on (ecord. The applicants further alleged that coming to know that certam • other order might be passed, the applicants tnoved a 1evision application under the Criminal Rev\sional jurisdiction before the High Court and thereafter had obtained the stay of the order of April 26, 1983 passed by the learned Sub-Divisional Magistrate. The said . application nnder Section 145 of the Code of Criminal Procedure is pending. The pendency of th~ proceedings under Section 145 of Code of Criminal Procedure and order, if any, passed thereon does no.t in any way affect the title of the parties to the disputed. p enises

though it reflects the factum of possession. See the decision of this Court in the case of Bhinka and Others v. Charan Singh. (1)

It is in this background that the applicants in their application before the learned Singfe Judge of the High Court prayed 'that their claim to be in l?ossession and their right to b~ in possession should •be determined. and as such they should be added as defendents to the suit and as a consequence, the order for police help granted by the High Court in ejecting the applicants should be recalled. The said application came up to, be heard by a learned Single Judge of the High Court and by an order passed and judgment delivered, the learned Judge rejected the application hording that the respondents nos. 1 to 4 being . the applicants therein were tresspassers and had no right to be in possessi.)n of the premises alter the Official Receiver hail been appointed receiver ,, nd further it was held that the parties had no right to grant any leave or licence after the pro- . party came under the custody of the Ofliicial Receiver. as receiver appointed m the 'suit. The learned Judge further held that a sale had been concluded in favour of the present appellant and therefore though noting that the respondents nos. 1 to 4 being the applicants therein had offered to pay a sum of Rs. 1,00,000 more for the purchase of the premis.es in dispute, the learned Judge rejected the said offer and dismissed t_heir application.

(IJ [1959] Suppl. 2 s.c.R. 798.

SAl>ltuRAM v. P. B. SA1\KA.R (Sabya<achi Mukhatji, J.)

As mentioned hereinbefore there was an appeal from this decision to the D; vision Bench of the High Court. The Division Bench was of the view that the offer made on behalf gf the respondents nos. l to 4 should be accepted. The Division Bench took the. view that there wa> no concluded contract for sale in favour ofthe present appellant. "The Division Bench was of the view that there was not then any completed sale. The Division Bench further noted

r as follows : ...,.

"On the other hand, we find that 38 families have been residing in the disputed land. It is submitted by Mr.

Bhabra that these persons are all tresspassers without any , vestige of title. It is however, the case of the petitioners . that they haye been residing in the disputed land by making certain structures nnder the leave and licence of two of the owners pf the said premises altl;10ugh one of the owners, Smt. Mala ti Das, who is alleged to have granted t!ie licence; has denied grantin~ of such licence. If the disputed land is . sold to' the respondent No. 2 then 38 families who have

been residing therein would be evicted with police help. In our opinion, the Court should do social justice and in doing such justice any technicality of law will not stand in its way. Social Justice requires that the disputed land should be sold to the petitioners .and others residing on the disputed land. Moreover, the petitioners have offered to pay the price of Rs. 5,00,000 that is to say Rs. 1,00,000 more than the offer of the respondent No. 2."

The Division Bcn:ch directed that Rs. 1,25,000 should be paid by present respondents! to 4 on or before August I, 1983 which it may be noted has been paid and thereafter pay the balance sum of Rs. 3,75,000 by August 29, 1983' which sum however could not be paid because in the meantime. special leave to appeal was granted by this Court and a stay had been obtained. It may be mentioned that the balance of the considersti.on of Rs. 3 lacs offered by the

presnt appellant has been paid only after the special leave had been obta.ined from. this Court. The Division Bench further directed that in ease payments were made within the time, the property in quest10n should be conveyed to the persons named in the said ord It was further directed that in case the respondents 1' to 4 com 'tterd. . . . m1 e . dfault m _paymg a urn of .Rs. 1,25,000 or 3,75,000 within the

stipulated time, the said order .would stand vacated and the order of

[1984] 3 S.C.R.,

learned Single Judge would stand confirmed i.e. ale would be made to the appellant.

It is the v~Iidity and the propriety of the said order which is impugned in this appeal. The question mainty is whether there was a. concluded and confirmed sale in favour of the appellant and if not could the Court direct the disputed premises to be conveyed to resj:londcuts nos. 1 to '4 for the benefit of 38 families relying on social justice.

Oa the qnestion whether in the 'facts and circumstances that have happened, the Court could pass the order it had done, some contentions were urged whether the sale in question was a court sale or a private s1le or a sale by the receiver. and whether confirmation of the court was required for such a sale.

Some of the decisions cited at !he Bar ou this point have been noted by my Brother. Jn the view I hwe take, n it is not necessary in this case to decide whether a confirmation of sale by the court ih the circum- . stancos under which the prop, rty was directed to be sold was necessary or not, !bough it may be sufficient lo note that there was some divergence of opinion on this point. On the nature of the possession by the receive;· and how interference with such possession should; bo dealt witl1 by law have also been noted in the observations in Halsbury's Law of England, 4th Ed., Volume 39 pages 451 and AS2, paragraphs 890 and 891.

See also Kerr On Receb'ers-15th Edition page 155 and also Kerr On Receivers-16th Edition pages 121 and

122. It is well-settled that when the property is in custody of a

rceiver appointed by the court; the property is in the cu, tody of the court and interference with such possession should not be encouraged and no p1lty can acquire any title or right by coming in or over th' property which is in the possession of the receiver without leave. or consent Of the receiVcr 'or sanction of the court.

It was ' urged tint in as much as no such leave had been obtained, by the

rspoadnls.niJs. 1 to 4, possession, if any, of the sai9. respondents or entry into the land by .the said respondents at a time when . indisputa.bly there was receiver was illegal. In view of tl)e. fact~

th1t have happened and in the light of the controversy before us now, in my opinion, it would. be futile to determine at this stage whether tlie entry of the respondellts nos. I to 4 was legal or illegal.

It may be mentioned, however, that so long as proceedings under Section. t45 of Code of Criminal Procedure were pending before the appropriato court, without any adjudication of the respondents nos.

. r

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-. 1

SAD!lURAM v, p,9, SARKAR (Sabyasachi Mukharji, J,} 619

. .. , J to 4's right to be in possession and di_recting that they be phys1 ca!ly ejected by police help without hearing them or without notiC.e to the mis not a correct leg1l position to take for court of law adm1ms

tering justice, But it is not necessary for the purpose of this appeal to express any final opinion on Jhat

It appears in the background of the facts and circumstances of the case that the Division Bench took the view that there was no concluded contract of sale in favour of the appellant and it appears to us that such a view was a possible view to be taken in view of the facts I have mentioned and if that -is so, such a conclusion cannot and should not be interfered with in.appeal under Article !36 of the Constituticm, Assuming even that though not legally but as a reality of fact, the respondents nos. 1 to 4 were and are in possession of the dispute premises, they want to purchase the premises by' paying more than the offer then made, the offer 111ade by the appellant to purchase the premises in dispute seems to be. rather low in the context of facts and circumstances prevailing in such arehs nearaboui Calcutta. The area comprises of about six bighas Le, about 120 cottabs of land. It has been suggested , in one ofthe affidavit on behalf of respondents nos. l to 4 that the prices prewlent in those areas are about.Rs, 14,000 per cottah" Thorefore 1t was suggested that in the transaction between the appellant and receiver or with tlie parties, there is more than what meets the eye, We, however, need not speculate on the same. The facts on which I would like to rest my decision are: (I) there is not a concluded contract in favour of the appeilant This view has been accepted by the Di vi sion Bench. It is a plissible , view, This view sho.u]d not. be interfered within appeal under article 136 of the Constitution;, and

(2) the fact is that the respondents J to 4 are in possession with large number of their families, The original entry might be, if their version is rejected, illegal and without" the authority of the court as no leave was obtained but their possession is a reality. Illi gitimacy of entry does not debar them from offering a higher price in purchasing a property, contract for sale in respect Of which has not yet been concluded; and (3} the , property is in custodia /egis.

Though the court directed the receiver to sell, as the sale has not been concluded .• the court .retains its power to direct its officer to sell to such other person the transaction of which will apparently , benefit the parties as appearing from the facts on record or as from the facts which meet the eye, ( 4) The factor that large number of people are in. possession with their families and conclusion of sale

620 SUPREME COURT REP OR ts [JcJ84) S.C; lt

• to them would cause non-interference with their continuance are factors which the court can and should tke into consideration in deciding the controversy in this case. (5) There has not indeed been any proper. adjudication of the right of the respondents nos. I to 4 to be in possession of the premises in questi<rn and even if their entry was tainted with illefality, it is not of such a magnitnde, in view of subsequent facts that because of illegitimate entry, they will be deprived of the right to bargain on propr term; to p1rch1s~ the property which is in the custody. of the court. If there has not been any proper sanction of the court, this is only a procedural irregularity and as is well-settled that rules of procedures are Hand Maids of justice not their mistresses.

The appellant in this appeal poses a question whether the concept of social justice empowers the court to grant relief in favour. of persons who interfere with the admitted possession of the receiver

t the expense of the bona fid, e purchaser at a court sale. As I see the facts, the basisupon which this question is posed namely, that the appellant is a bona fide purchaser of the property is not correct in the light of the view taken by the Division Bench. There .had not bem. any concluded contract of sale when the Division Bench passed the order.

• The concept of social justice is not foreign to legal 'justice or social well-being or benefit t<? the commnnity rooted in the concept of justice in the 20th century. The challenge. of social justice as I see it, is primarily a challenge to the society at large more than to the court immediately. Social justiee is tnc of the aspirations of our Constitution.

But the courts, we must remember are pledged to admin:stcr. ju, t'ce as by law established. In formulating the concept of justice, however, the inarticulate factor that large number of human beings should not be dislodged from their possession if . it is otherwise possible to do so cannot but be a factor whic)1 must and should influence the 1\linds of judges in ihe facts of this case. It is truO' that the persons who were alleged to be in possession are with unclean hands but they came for shlter and built in hntments. They do not want to legitimis~ their stay by illegal entry, they want to be rehabilitated at competitive bargain price. Should they be denied that opportunity on the ground of their origini'l illegitimacy '!

I am defmi\ely of the opinion that in these circumstances they should not be so denied rehabilitation. Jn administering justice-justice according to law In this case, no law is breached in the view taken

• f-

, •

SADHURAM v. P. B. SARKAR (Sabyasachi Mukharji; J.) 621

by the Division Bench of the Calcutta High Court. The American

Bar Association in its report in 1964 had observed that ju.risprudence has shifted away from finespun technicalities and abstract rules to . practical justice to a recognition of human beings, as the most distin• ctive and important feature . of the universe which confronts our senses, an.d of the funciion of Jaw as . the historic means of guaranteeing that preeminence. (See The 'Fourteenth Amendment . Centennial Volume Edited by Bernard Schwartz. page

ioj. I. therefore respectfully agree with Brother Fazal Ali when he says, that in administering justice-:-social or legal, jurisprudence bas shifted away from finespun technicalities and abstract rules to recog• nitiori. of human beings as 'human beings.

It is true that.original entry was illegal and we are sometimes urged "to do a great right, do a little wrong" (See the plea of.

Bassanio in Merchant of Venice). In this case, however, the court has done no legal wrong at all.

The court has only ignored the non-compliaqce of not seeking court's leave for the allege!) grant of licence.

Jn administering justice, or social legal, we do well to bear , in mind the words of Justice Holmes "The life of the law has not been logic: it has been experience. The felt necessities of the time, th<: prevalent. moral and . political theories, intuitions of public policy, avowed or unconscious, evei:i the preiudices which jqdges share with their fellow-men, have had a good deal more to do than the syllogism .in determining the rules by which men should be governed.

The law. embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathe.natics. In order to know what it is, we must know what it has been, and what it tends to become.

We must alternately consult history and existing theories of legislation. But the most difficult Jabour will be to understand the combination of the two into new prod.ucts at. every stage. The substance of the law at any given te pretty nearly corresponds, so far as it goes, with what is then understood to be convement but its , . form and machinery; and the degree to which it fa able to work out desired results, de.pend very much upon its past." (The common Law by Oliver Wendell Holmes-.Edited by Mark De Wolfe Howe- Lecture I-page I).

!he '.elt necessities of time and in this case the convenience of

s1tution a11d the need for adjusting the rights of a larger number

• ' 0

. [1984) 3 S.C R

A of people without deprivation of any accrued ight of anybody would be justice according to law. Before we raject social justice' as, something" alien to legal justice, we should remember that a meaningful definition of the rule of law must be based on the realities of contemporary societies and, the realities of the contemporary societies' are-

B men are in acute shortage of living accommodatio11 and if they are prepared to bargain and rehabilitate , themselves on competitive terms, they should be encouraged and no technical rules should stand in their way.

That would be justice 'by highways' and not frtfilt(ation 'by bye-lanes':

C fothat view of the matter, I hold that there is no merit in this appeal. I agree with the order proposed by Brother Fazal , Ali and the reaons given by him.

N.V.K.

Appeal dismissed

i ..

582

SADHURAM BANSAL

PULIN BEHARI SARKAR & ORS

FA2(AL ALI

Code of Civil Procedure 1908

Code of Criminal Procedure 1973

Section 145

s 1 to 4

Fazal Ali

Sabyasachi Mukha.rji

Art. 136

Pet Fazal Ali

er Varadarajan

Sabyasachi M"kharji

Section 145

S.S. Ra;1

S.S. Ra;1, S. N. Kaker, P. K. Mullick, R. Deb, N. P. Agf{arwala 'r'• and B.P. Singh for the Appellant.

S. N. Kaker

P. K. Mullick

R. Deb

N. P. Agf{arwala

B.P. Singh

G.L. Sanghi

G.L. Sanghi, and H.K. Puri for Respondent.

H.K. Puri

Anil Dev Singh

Anil Dev Singh and Ashok Sil for Respondent No: 5.

Ashok Sil

FAZAL Au

The Judgment of the Court was delivered by

FAZAL Au.

s. 145

Receiver under the provisfons of the Civil Procedure Code

s. 145

Receiver under the provisfons of the Civil Procedure Code

Receiver under the provisfons of the Civil Procedure Code

s. 145

Jitendra Kuniar Das

Liluah

7, Duffers Lane, Liluah, Howrall as also some premises in.

Howrall

Calcutta

Malati Das

Jienqra Kumar Das

March 14, 1983

case of the appellant tbat on March 14, 1983, respond, ent Nos.

13th May, 1983

May 24, 19S3

June 22, 1983

Pulin Behari Sarkar

Manick Seel

Gope Nath Sarkar

Sudhanshu Bimal Dey

May 2, 191!3

s. 145(5)

Code of Criminal Procedure

s. 145

Code of Criminal Procedure

s. 145

s. 1

Bhabra

\tis submitted by Mr. Bhabra that these persons are all trespassers without any vestige of title.

Malati Das

SADHURAM V. p

SADHURAM V. p, B. SARKAR (Fazal Ali, J:Y
0ur opinion, the Court should do social justice .and in doing such justice ai, y tchnicality of law will not stand in its way.

B. SARKAR

State Bank of India

Dank Draft on State Bank of India of ah amount equivalent to 25% of the offer.

Sad!zuram Bansal

23A, Netaj1 Subhas Road, Calcutta-700 001.

December 20, 1982

Mitra

L.P. Agarwalla & Co

L.P. Agarwala & Co.

P. B. SARKAR

st August 1983

st August 1983, which it may be noted has been paid; and thereafter pay the balance sum ofRs.

29th August 1983

Malati Da&and Jitendr&.Kumar .Das bad no title or interest to create any licence in their favour.

S, S. Ray

':Mr. S, S. Ray, appearing for the appi1Iant, submitted .that . ' • .

SUPREME COURT REPORTS [1984) 3 s.c.R.

Howrah

V ARADARMAN

V ARADARMAN,' J. This appeal by special leave is direCted against the order of a Division.

Calcutta High Court

umar Das

Ajit Kumar Das

Sadhu Ram Bansal

The appellant Sadhu Ram Bansal offered a sum of Rs.

4,00,000 for.the property to the Receiver by his advocate's letter dated 20.U.19S2.

Prabir Kumar Das

Pradeep Kumar Das

iiendra Kumar Das

23. 12. I98i

terms Ol a motion of a meeting dated 23.

P. Banerjee

Putin Behari Sarkar

On 22.6.\983 respondents 1 to 4 nanieiy, Putin Behari Sarkar, Manik .

Manik . Seal

Gopinath Sarkar

Seal, Gopinath Sarkar and Sudhansu Bimal Dey moved the.

Sudhansu Bimal Dey

Ashok Kumar Rai

Sajan Kumar . Bansal

SA[)I!URAM V. P. B. SARKAR

Kamal Hosiery

Cakutta High Court

1267 o(

1982 filed by Kamal Hosiery against the Official Receiver was pending in the Cakutta High Court.

s. 145

Code of Criminal Procedure

Monjula !lose

Sadhu Ram Bansal

Malati Das

Q75 with the leave of one Malati Das and Jitendr11 Kumar Pas.

Jitendr11 Kumar Pas

Mala ti Das

It is significant that the said Mala ti Das .

Jitendra Kumar Das

Ashoke Roy

L. P. Aggarwal

Sadhu Ram.Bansal

Sadhu Ram Bansal

Bansal and as such the Official Receiver accepted_ the offer of the said Sadhu Ram Bansal, after.

M. M. Dutt

C. K. Ilanerjee,

Som Nath Chatterjee

"At the bearing of this application Mr. Som Nath Chatterjee,.

A. C: Bhabra

Mr. A. C: Bhabra, learned Counsel appearing for respondent Nb.

Jhabra

It is submitte.d by Mr. ]Jhabra that .those persons are all trespassers without any vestige of title.

Malafr Ds

Malafr Ds who is alleged to have granted the licence, has denied granting of such licence.

Varadarajan

s. 3

s. 5

S.S. Ray

G.L..

Sanghi

Ray

Mr. Ray submitted rightly that respondents 1 to4 are ra.nk trespassers iri respect of.

Jitendra Kumar Das

Monjula Bose

Prasad Nath Das

Jitendra Kumar Das

Respondents I to 4 have not examined Jitendra Kumar Das to prove th• alleged.

Jitencira" Kumar rias

Sub Divisional Executive Magistrate-, Sadar; Howrah

Criminal Procedure Code

Sanghi

Couft

M:onjula Bose

This has been found by M:onjula Bose, J. in the order dated 18.7.1983.

Mc Sani

Mc Sani invited thi~ Court's attention.to the Calcutta High

6IO

'..\

SUPREME COURT REPORTS [1984] 3 s.c.

Ashok Kumar Rai

D.N .. Mitra

rabir Kul!'ar

Sabyasachi Mukhaiji

.Pradeep Kumar Das

Order 21 rule 89

the Code of Civil Procedure

[1974] 3 SCR 678

Monjula Bose1

SABYASACHI MUKHARJ

Fazal Ali

J, With respect I agree with the order proposed by Brother Fazal Ali.

High Court of (;1lcutta

Prasad Nath Dasc!aiining

October II, 1982

High Court, Calcutta

Jan. 12, 1983

B.N. Mitra

January 13, 1983

Jitendra Nath Da~

Malati Das and Jitendra Nath Da~; in 'certain specified ' plots mentioned in their application.

May 2, 19~3

They further alleged that on May 2, 19~3.

Section 145

Code of Criminal Procedure

May 7, 1983

Section 145

Code of Criminal Procedure

Section 145

Code of Criminal Procedure

Mala ti Das

Mala ti Das, who is alleged to have granted t!ie licence; has denied grantin~ of such licence.

August 29, 1983

3,75,000 by August 29, 1983' which sum however could not be paid because in the meantime.

Code of Criminal Procedure

article 136

American

Bar Association

Bernard Schwartz

Centennial Volume Edited by Bernard Schwartz.

Fazal Ali

Bassanio

Venice

Holmes

Oliver Wendell Holmes-.Edited

The common Law by Oliver Wendell Holmes-.Edited by Mark De Wolfe Howe- Lecture I-page I).

Mark De Wolfe Howe-

Fazal

I agree with the order proposed by Brother Fazal , Ali and the reaons given by him.

Ali

N.V.K.