Sadhuram Bansal v. Pulin Behari Sarkar & Ors. (1984) — Supreme Court judgment

SADHURAM BANSAL Y.

PULIN BEHARI SARKAR & ORS. . April 26, 1984,

- [Fazat Aut, A. VARADARAJAN AND SABYASACH] MUKHARII, JJ.F Code of Civil Procedure 1908, Order XL Receiver ‘appointed by Coitrt—Property in _custody of receiver—inter— ference 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 14 5

Order passed i in proceetlings under this section—Does not affect title of parties to disputed premises— However reflects factum of possession.

’ Administration of Justice—Social Justice—Courts no longer merely protector of legal rights—Technicalities of law and procedure not to be insisted” upon-—Substantial justice to be meted out to parties—Necessity of.

. In a suit filed in the High Court for a declaration and relief in respect ‘of several properties, the Official Receiver of the High Court was appointed: Receiver. On the request of the parties, the Official Receiver, decided to» sell one of the properties with the permission of the Court. The price of the property was fixed at Rs. 3.5 lakhs. The appellant offered a sum of ‘Rs. 4 lakhs for purchase of the property,- and by his advocate’s letterenclosed a draft for Rs. 1 lakh, being 1/4 of the amount. A meeting was. held in the presence of the plaintiff and their counsel, and at the meeting: the offer received from the appellant was considered and-it was decided that the offer of Rs. 4 Jakh by bank draft. . The Official Reteiver accepted theoffer of the appellant, communicated the acceptance and Teguested theappellant to deposit the balance amount.

. The Official Receiver, thereafter moved the High Court for directions. ‘to remove respondents 1 to 4 0n the ground {hat they had trespassed intothe property afew months earlier. Respondents 1 to # moved an Appli* cation for being impleaded in the suit and contended that they were .

‘residing with their families under a licence since 1975 and had constructed pucca-huts thereon and. that with the knowledge of this continuous posses~ sion, the parties to the suit -have filed the suit among themselves without: impleading them (respondents 1 to 4).

SADHURAM Y. P. B. SARKAR

The Single Judge rejected the aforesaid contentions of respondents -

1 to 4-and held that though they were prepared to offer the sum of Rs. 1

Jakh more thin the appellant the property could not be sold to them.

The Division Bench, however allowed their appeal, directed. respondents 1 to 4 to pay to the Official Receiver a sum of Rs. 1.25. lakhs immediatly and the balance of Rs. 3.75 lakhs thereafter and on such .

payment ordered sale of the disputed property. to respondents 1 to 4 and their 34 nominees on the ground that the Court should do social Justice and in doing such justice no teshnicality of law would stand in its way.

; ; Dismissing the Appeal to this Court,

HELD? [Per Fazal Ali & Sabyasachi Mukharjiy JJ Majority] -

In administering justice—social or Jegal—jurisprudence has shifted away from finespun technicalities and abstract rules to recognition of human beings as human beings. The Division Bench of the High Court had adopted the above approach, and no law is breached by the view taken by it. Iris improper for this Court in exercise of the discretion vested under Art. 136 of the Constitution to interfere with that decision.

[59s FG; 622A-B]

[Per. Fazal Ali, J.]

1. In our opinion, there appears to be some misapprehension about what actually social justice 1s. There is no ritualistic formula or any

. magical charm in the concept of social justice. All that it means is that _ as between two parties if a dealis mude with one party without serious

‘detriment to the other, then the Court weuld lean in favour of the weaker section of the society. Social justice is the recogniticn of greater good to larger number without deprivation of acciued legal rights of anybody. If such a thing can be done'then indeed social’ justice'mu:t prevail over any

- technical rule. It ig in response tothe felt necessities of tim end situation in ordér todo greater goodto a larger number even though it might

‘detract frem some technical- rule in favour of a party. Living accommo.

ation is a humen problem for vast millions ir our country. [595B-D] ?

the best course in the cirtumstances that could have been adopted by the

-court.

3. Justice—soctal; economic and political—is preamble to our Constitution. Administration of justice can no Jonger be merely protector of lega) rights but must whenever possible be dispenser of social justice.

o _ [59SH-S96A]}

- 2. Call it sacial justice or solving a socio-econamic problem or giveit any other name or nomenclature, the {ect of the matter is that this was.

* 4, The Division Bench of the High Court bas done substantial .

ws stice by throwing aboard. the technicalities particularly for the reason that couris frown over a champartous litigation or agreement even though the same may be valid. The Division Bench by its decision got more ry

SUPREME COURT REPORTS . [1984] 3 s.cr.

money for the owners on the one hand and one the other sought to reha-" bilitate the 38 families of the respondent who had already ~ built” perma-

‘nent structures, [597G-H] . . . »

In the instant case, thé Division Bench ‘was perfectly . justified in , accepting the offer of the respondents because : (a) the respondents were prepared to pay Rs. 1 Jakh more than the eppellant and the appellant did not pay the balance: of Rs. 3 lakhs, (b) possession ‘being 9/10th of title,

‘the respondents being in actual poss:ssion would have no difficulty in becoming the owners, (c) respondents weré prepared to purchase the property notwithstanding litigation, because if they became owners no one could challenge their title or poss:ssion. The Single Judge completely ignored two materiab aspects ; (a) thdt a bulk of the consid:ration money viz, Rs. 3 lakhs: out of Rs. 4 lakhs was not paid by the <ppellant, and (b)

‘that an owner also has right to impose certain conditions, and in exercise ofthat, the condition that the purchaser would have to buy the land subject to the pending litigation was imposed. [$97C.F; $6A-D]

(Per Varadarajan, J. dissentirg)

‘1. The Division Bench bad no right or justification to alter or modify the earlier order made for the sale of the property which had become’ final, or to hold that a subsequent offer mide by respondents 1 to 4 to purchase the property for Rs. 5 lakhs should be accepted merety because it appears to b> aiyantagtous to the owners of the property in the name of social justice. [612F] .

2. The benefit claimed on behalf of respondents I to 4+ which cannot called aright, for there “is no corresponding obligation—cannot be

. equated with or even brought anywhere near the soci.l justice mentioned-

’

in the preamble of the Constitution, [612G]

3. Respondents 1 to 4 are trespassers in respect of the. property which‘ is in custodia legis and they are in contempt of the Court. They cannot be allowed to con‘inus to be in contempt and urge it as aground for obtaining the benefit of tae sale of the property in their fovour. If the appellant has not complied with any condition it may be greund for the owners and the Official Receiver not to accept his offer and refuse to sell the property to pim and not for respondents 1 to 4 to raise any objection. The offer has been accepted rightly or wroagly more than once and therefore the appellant.may have a right to sue for specific performance of the contract on the basis of that acceptance by the offizial Receiver given with the approval of the parties 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. [611D-F]

In the instant case, the property has been agreed to be so’d by private treaty and the Officidl Receiver has been authorised to sell the property

‘either 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-apgrove ye ie

“by od v4

SADHURAM }. P. B. SARKAR or confirm such sale. The parties who are sui juris must be deemed to

585°

Shave known 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 respondents I to 4 had offered to purchase the property for

‘Rs, 5 lakhs. The appeal has therefore to be allowed. [612E; 613B] " Everest Coal Company (P) Ltd v. State of Bihar & Others, {1974] 1SCR P. 571i at P. 573, Kayjay Industries (P) Ltt. v.. Asnew Drums (P)

Ltd & Others, [1974] 3 SCR P. 678,. Jibon Krishna Mukhe.jee.v. New -

Bheerbhum Coal Co. Ltd. & Anr., [3960] 2 SCR P. 198; Tarinikamal Pandit

*” & Others v. Prafulls Kumar Chatierjae, [1979] 3 SCR P. 340, referred to. Per Sabyasachi Mokharji, J.)

* The pendency of the procceedings under Section 145 of the Code © of Criminal Procedure and o-der, if. any, passed thereon does not in any

- way affect the tnle.of the parties to the disputed premises though it reflects

Ahe f.ctum of possession.[616D]

Bhinka ‘and Others vy. Charen Sirgh, [1939] Suppl. 2 S. C. R. P, 798 acferred to,

- 2. When the property is in custody of a receiver appointed by the court, the property is in, the custody of the court and interference with such possession should not be encouraged and uo party wun acquire any title or right by coming in or over’the property which is in the Possession of the aecei ver OF sanction of the court [o18F]

Halsbury’s Laws of England, 4th Edn., Vol, 39 pages 451, 452 para- “graphs 890, 891 : Kerr On Receivers—16th Edn. pages 121 referred to.

3,. The concept of social justice is not foreign to legal justice or social well-bemg or benefit to the community rooted in the coacept of

_dustice in the 20th century: The challenge of social justice is primarily a challenge to the society at large more than’ to the court immediately. .

Sociat justice,fs one of the aspirations of our Coastitution. Butihe courts, are pledged to. administer justice as by law established. [620F]

Ta ihe instant case, in formulating the concept of justice, however, athe inarticu'ate factor that large number of human bejngs should not be dislodged from their possession if it is otherwise possible to do so cannot

“bu: be a factor which must and should influ:nce the minds of judges. It

“$s true thatthe persons who were alleged to be in possession are with. , unclean, hands, but they came for shelter and built in hutmeats. They do u6t want to be rehabilitated at competitive bargain price. Jn the circum- ‘stances they ‘should not be denied rehabilitation on the ground of their original illegitimacy. [620G-H]

a... The felt necessities of time and in this case the convenience of the situation and the need for adjusting the rights of a larger aunber of

SUPREME COURT REPORTS [1984] 3 S.C.Re people without deprivation. of any accrued right of anybody would bejustice according,to law, Before social justice as somcthing alien to legaF

_ justice, is rejected, it, sheu'd be remembered that a meaningful definition of the rule of law must be based on the reglities of contemporary societies. and the realities of the contemporary ‘societies are—men are in acute shortage of living accommcdation—and if they are prepared to bargain. and rehabilitate themselvss on competitive terms, they should be encouraged and no technical rules shou'd stand in their way. That would be justice: ‘by highways’ and not infiltration ‘by bye-lanes’, [621H-622B]

Civit APPELLATE JURISDICTION : Civil Appeal No. 5887 of

Appeal by Special leave from th: Judgment and Order dated the 25.7.1983 of the Calcutta High Court i in Appeal No. 271 of 1983.

SS. Ray, S. N. Kaker, P. K. Mullick, R. Deb, N.P. Agkarwala and B.P. Singh for the Appellant. ;

«GL. Sanghi, and H.K. Puri for Respondent. 4

Anil Dev Singh and Ashok Sil for Respondent No. 5, The Judgment of the Court was delivered by .

- FazaL Aut. J, This appeal by special leave against + the judg-ment of the Calcutta High Court discloses an unfortunate litigation which proves the well-known legal maxim ‘“‘delay defeats justice’™ and arises out ofa Will executed by the testator which was hotly contested by various rival claimants resulting in an action which. went on merrily and sprightly for almost three decades as a result of which in the back-waters Of the long-drawn litigation most of the claimants died and their successors were interested not in the

_ property but in the money which the property would bring, if sold.

Asa result of interoecine dispute between the heirs, an Offi- _ cial Receiver had to be appointed to look after the property and the.

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 Of the court by a private treaty least the litigation might. draw the last drop of the blood of the Property rights of thevheirs, Meanwhile, some more events followed which made the task of the Receiver both complex and complicated as the respondents put uptheir claim to possession of the Property either as trespassers or as. licensees from some. of the heirs. ,

— row

4 | SADHURAM y. P. B. SARKAR (Fazal Ali, J.)

Thus, while the negotiations for the private treaty were going ona new ‘upshot in the guise of the respondents’ 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, 4 number of buildings came up and perhaps it became next to impossible for-the heirs to occupy the premises again. To add to this, came up.a new litigation in the shape of proceedings under s. 145 of the Code of Criminal Procedure between the parties.

The heirs having given up all hopes of getting vacantsposses”

sion became “sadder and wiser” to sell the property: if they could geta handsome amount for the same. A bargain was, therefore, struck, with the approval of the Receiver, by which the entire pro- - ' perty was agreed tobe sold to the appellant fora sum of Rs. 4 lakhs, under which he paid Rs. 1 lakh and promised ‘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, however, 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 that the possessions of the premises by the respondents did not pose any problem because they being rank tespassers could be evicted summarily by the Receiver under the provisions 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 lasted for a year or more and proceedings under s. 145 ofthe Criminal Procedure Code had already started, the law had to take its normal course. So faras the criminal court it concerned, the only “course which could at best be taken was to declare possession of the party 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 the relevant tine.

The relevant portion of s. 145 may be extracted below 5 ,

“145. Procedure where dispute concerning land or | water is likely to cause breach of peace.

588 _ SUPREME COURT REPORTS [1984] 3 -s-c.r.

“A : (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 produced by them, take such further ‘3 7 evidence, if any, as he thinks necessary, and, if possible,, nd ’ . . decide whether any and which of the.parties was, at the : date of the order made by him under sub-section (1), in possession of the subject of dispute :

. ~ Provided that if it appears to the Magistrate that any aa 6 party has been forcibly and wrongfully dispossessed within . two months next before the date‘ on which the report ofa ;

police officer or other information was received by the ’ Magistrate, or after that date and before the dateofhis| order under sub-section (1), he may treat the party so dis- ‘ possessed as if that party had been in possession on the

D . date of his ordér under sub-section (1).

(6) If the Magistrate decides that 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 Dy possession thereof until evicted therefrom in due course of » law, and forbidding all disturbance. of such possession unt'l such eviction; and when he proceeds under the proviso to sub-section (4), may restore to possession 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 he which have been reflected in what we have said above. .

" The story of the case begins with the execution ofa Will and G. testament by one Jitendra Kumar Das on May 22,1952 in favour _ of some of his near relations, in respect of premises No. 7, Duffers » Lane, Liluah, Howrah as also some premises in. No. 211, Old China Bazar Street, Calcutta. The suit was instituted fora declaration that the aforesa'd Will was void and . invalid, hence the legatees Yen under the Will, had no right, title or interest. The suit went on ding-dong from one stage to another until 1973 when, according to, the respondents, twoof the owners, viz., Smt. Malati Das and

. co.

SADHURAM y. P. B. SARKAR (Fazal Ali, J.)

Jitendra Kumar Das or at least one of them pot them (respon- dents) in possession of the Duffers Lane property under a leave and licence. During the. course of their possession the respondents constructed permanent structures and have been regularly residing there since. 1975,

. It is alleged that in February 1983, fire broke out in the factory adjacent to the premises in question and fire-brigade men entered ,

_ into the premises by breaking a portion of the wall to get access to the pond. It is the case of the appellant that on March 14, 1983, respondent Nos: 1 to 4...alongwith some miscreants forcibly entered

- into the land. This, however, is disputed and is the root of contro- versy in this case. Jtappears that the present appellant, who had

_ not yet become 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 Official Receiver authorised the appellant ‘to take steps for protection of the property. It is difficult to appreciate how before a concluded coatract and -a conveyance in favour of the appellant, the Official Rec: ziver could have authorised the present appellant to take steps for removal of respondents treating them unilaterally as trespassers. Order was obtained on May 24, 1983 from a learned Single Judge of the. High Court directing the police to remove the unauthorised occypants. 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 Suydhanshu

Bimal Dey, mentioned the fact that they had come to know about the appointment of the Official. Receiver from the police and they had further come to know about the offer made by the appellant for the purchase of the premises in dispute. The said applicants (being © respondents herein) alleged that they alongwith their families, with: the leave-and licence of one of the co-owners, were residing in the premises since 1975 and had constructed pucca huts and in spite

. of the same, the appellant did not inform the Court of the said fact before obtaining police help against them. It is further alleged

‘that on May 2, 1983 they had come the know that the appellant had obtained ex parte.order from the learned Sub-Divisional Magistrate (Executive) directing the Superintendent of Police to restore possession ‘of the disputed: premises, comprising about Six x bighas of land, by arranging poli ice pickets.

58S

As.

| Be

SUPREME COURT REPORTS [1984] 3’s.c.r.

. Thereafter, the said applicants filed an application before the learned Sub-Divisional Magistrate. (Executive), Howrah, undér s. 145(5) of the Code of Criminal Procedure with a prayer to recail , the €x parte Order mentioned hereinbefore and to call for a report from the local’ police and others regarding possession of the said applicants in the disputed premises. The Sub-Divisional Magistrate did not pass any order: but adjourned the said application to 7th May 1983. Though no formal ofder was passed, the said application was kept on the record. After coming to know that certain other

_ orders might be passed, the applicants moved a revision : application ‘under the Criminal Revisional Jurisdiction of the High Court and thereafter obtained the stay of the Order of 26th Aptil 1983, passed

“by the learned Sub Divisional Magistrate. This position is not disputed. So, the 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 didnot 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 atid had not been quashed, they .

could not have been summarily ejected. The learned Judge further noted that the respondents had offered to pay Rs. 1 lakh more for purchase of the premises in dispute “but the learned Judge wasof the view that'the 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 concluded contract of sale in favour of the appellant and hence there was no completed sale yet. The Division Bench further noted thus:

“On the other hand, we find that 38 families have been residing in the disputed land. It i is 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 licence, 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. Be SARKAR (Fazal Ali, Jy |

_ our opinion, the Court should do social justice and in doing A 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. 5,00,060, that is to say-Rs. 1,00,C00 more than. the offer of the respondent No. 2.”

At this stage, if may be necessary to notice the ‘terms and conditions under which the owners agreed to sell the properties to ithe appellant, which may. -be extracted thus: -

“We further understand that a meeting held by you it has been decided that an cffer should be accompanied by a” Bank 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 — - Dproperty for Rs. 4,C0,CCO (Rupees four lacs) subject tothe . - Vendors’ making out a good and marketable little free from ‘encumbrances on behalf of our client Sri Sadhuram Bansal of No. 23A, Netaji Subhas Road, Calcutta-700 001. The sale will be completed within six months or such’ further

"extended time as may be agreed | upon in one or ‘more lots E by one or more. sale deeds in favour of our client orhis . . nominee or nominees.. Lt

, We hereby enclose a diaft of State Bank of India for Rs. 1,00,000 drawn in your favour.as desired by you. .

- After hearing from you that onr 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 the owners while generally G_ agreeing 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 , offer would be subject to the buyers agreeing to purchase the land amith pending [itigation; the exact Sentence may. be extracted thus: . H “My clients haye no objection with regard to- the

» 592

SUPREME COURT REPORTS {1984] 3 s.c.r acceptence of the said offer of M/s. L.P. Agarwalla & Co.. subject to their clients agreeing to purchase the same land with pending litigation in respect of the said property.”

Similarly, the counsel for the other owners also accepted the- offer of the purchaser. After having accepted the offer, it was decided .- to circulate a draft agreement for sale for finalising: approval of the owners, ~

- Before proceeding to another important stage in the case, it may be mentioned that from what has - been extracted above, the offer of the appellant through their attorney (LP. Agarwalla & Co.) “was not accepted unconditionally but with certain reservations . _Wwhich on a close scrutiny ran counter to the stipulation mentioned in the offer of the purchaser. For instance, while the purchaser insisted thet he would buy the 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.

because the clients of Mr. Mitra had clearly, indicated that the offer would be accepted only ifthe purchasers were prepared to buy the

Jand with the pending litigation.

; " Thereafter, the matter having been. placed before the court, the receiver informed L.P. Agarwala & Co. thatthe offerof the purchasers was accepted and the balance of Rs. 3 lakhs had to be

. paid at an early date. The: letter informiag L.P. Agarwala & Co, was. ' written by the receiver on 13.1.83. In the context of the circum- stanees mentioned above, the term ‘at an early date’ had to be construed literally soas to mean ‘expeditiously and. without any reasonable delay’. It cannot be interpreted to give a long rope to the purchaser.to deposit the balance of the amount whenever he liked. It would have been better if the receiver could have fixed a particular date by which the balance amount was to be deposited, failing which the contract would stand cancelled. Even so, as a corollary of the correspondence between the parties, this condition must be read into the letter of the receiver. However, the balance of.

Rs. 3 lakhs was never paid until the matter came up to this Court.

In between, the purchasers approached the feceiver to evict the trespassers summarily even though by that time the contract had not passed, into the domain of an executed contract but was only a

‘executory contract and conferred nogitle on the purchasers. It seems to usthat the purchasers were more concerned with taking the possession and evicting. the trespassers, becayse they knew full well

SADHURAM Y. P. B. SARKAR (Fazal Ali, J.)

| that in view of the proceedings under s. 145, it would have been.. - difficult for them to get the possession and therefore reserved the balance amount of Rs? 3 lakhs until they got the possession.

They, however, rose ‘up from their ‘deep slumber only when,

- they realised that the respondents had made an application for being atrayed as parties to the suit by putting forward their cage that since.

they were in possession of the properties. and had also constructed ~ ° their own structures, they could not be evicted sammarily because .

the matter was sub judice.

In order, however, to cut the matter short, the respondents .

themselves made a-clear offer to purchase the properties in question

_ by paying Rs. 1} lakh more than the appellant and prayed to the court that their offer should be accepted. In fact, there was no bat to the receiver in accepting a higher offer because the appéllant’s offer had not yet been translated into action or become op erative as

- the purchaser had not yet fulfilled the two conditions, viz., (1) not making the payment of the balance amount of Rs. 3 lakhs, and (2) not indicating’ that they would buy’ the properties: subject to the pendin g fit gation:

‘It was argued by the appellant that so far as he was concerned,

* the contract was complete and could not be superseded even if a - higher offer was made to the receiver. This argument cannot be z accepted because the purchasers haying themselves 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. the parties. Afterall, this was not a court sale where the highest bid was made and the amount. was deposited _ that the sale becaine irrevocable.

In these. circumstances the Division Bench directed that

Rs. 1,25,000 should be paid by the present respondents I to 4 on or before Ist August 1983, which it. may be noted has been paid, and thereafter pay the balance sum of Rs. 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 further directed that in casé payments were made

-within the time, the property in question should be conveyed to the persons named in the said Order. It was further directed that in case respondents 1 to 4 committed default in paying the.purchase price within the stipulated time, the said order weuld stand. vacated

‘ | evidence did not take place though there are’ passing observations’ inthe decision of the learned ‘Single Stidge that Smt. Malati Das.and- Jitendra-Kumar Das had no title or interest to create any licence in

SUPREME COURT REPORTS ~ a [1984] 3 S.C.R.

and the Order of the Learned Single Judge would stand confirmed, ie., the ‘ale would be made j in favour of the appellant. .

Coming. back to the facts, the resporidents” claimed before. the learned trial Judge for investigation of their right to be in possession

- of the disputed premises by virtue of the leave or licence granted by .

one or two of*th: co-owners. The. investigation of that point on their favour-and that one of them further denied having given any

- such licence. It hag te be borne in. mind that there has been’ no investigation of the respondents’ right to be in the premises; even a> trespasser cannot be- thrown out of his occupation or possession,

' except by due process of law. The owners.appeared in these pro- ceedings 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 Hon’ble Court.

The appellant’s rights: Which have not yet crystallised would ~~ not be hampered. Court’s dominion over-the property is still there.

_ ‘The Official Receiver is after all an agent of the. Court. as has - been held by this Court j ina number of cases.

’ In the case of Everest Coal Company (2) Ltd. v. State of . Bihar. & Ors.('), this Court reiterated that when a court placed a Receiver in possession of property, the‘property came under the custody of —

- the court, the Receiver being merely an officer or agent of the court,

In Kayjay Industries (P) Ltd. v. Asnew Drums (P) Ltd. & Ors.2 this. Court reiterated the court’s obligation to exercise’ discretion to ‘make out a fair sale out of a bargain.

_In Tarinikamal Pandit & Ors. v. Prefull Kumar. Chatterjee (dead) by Lrs(@) this Court reiterated (at p. 353) that the receiver was appointed under. Order 40 Rule 1 anda property could be, sold. ’ by the receiver on the direction of the Court evert n by private negotiar tions. > .

~. Q) [t978}. 1 $.cR.571. © (2): [1974] 3.S.C.R. 678. oe (3), [1979]'3 S.C.R, 340. ‘

YN. 5

SADHURAM 9 y. DP. B. “SARKAR (Fae All, Jt 1)

_ Tf, in these circumstances the court directs that on payment. of. a “higher sum of money for ‘the benefit of the owner, and without

‘any ‘preach-of any legal right of the intending purchaser, the property ~ can be conveyed to persons in: occupation with large number.. of.

families, the Court acts Properly @ and with, social well being in mind.

‘Mr. S. é. ‘Ray, appearing for the > appatant ‘submitted that the - éntire question was a legal issue and there’ Was no warrant for the learned Judges‘of the High. Court to have imported the doctrine

-. of secial justice. In -our opinion, there appears’to be some mis- apprehension about what actually social justice is. Thefe is 10 ritualistic formula or any” “magical, charm, in the concept of social justice. "All that it means jis.that as between two parties if a’ - deal fos js madé with ome party without serious detriment to the other, then © the Court would fean in favour of the weaker section of ‘the society,

Social: justice is the. recognition of greater good to larger number — without deprivation of accrued legal rights of anybody. If such a thing can be done then indeed social justice: must prevail over any ~ technical rule. Itis in response to the felt necessities of time and situation: in. order to do- greater: good to a larger : namber even though it might detract from some technical rule in fayour “of a party. Living accommodation is a human problem for vast mifllions“ in-our- sountly- The owners, in this case, are * Betting legally Rs. As

We must remember that in administering justice- -social or legal- jurisprudence has shifted away. from .finespun . ‘technicalities and

__ abstract rules to recognition of human being as human’ beitigs, and as - human _needs and if these can be fulfilled without Meprivation f existing legal rights of any party concerned, courts must lean to-

_ wards that and if the’ Division Bench, of the. High Court, in the facts and circumstances of the case, ‘has leaned towards that, it is improper for this Court in exercise of the discretion vested.under Att. 136.of the Constitution fo interfere with ‘that decision: -We would do. well to remember that justice—social, economic and poli- tical—is preamble to our Constitution. Administration of justice can no longer be merely. protector of legal rights but must whenever possible be dispenser of: social justice. ,

Call it social justice or solving a socio- economic: problem or give it any other name’ or nomenclature, the fact of the matter is that # this was the best course in the circumstances _ that could have wer - ~ eke.

; A a:

§96 |

SUPREME COURT REPORTS _ [1984] 35.0.8, been adopted by the court. Unfortunately, the Single idge com: . pletely ignored: the following . -important facts which have been indicated by me earlier: _

(t) 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 the learned Single Judge had passed the order nor was it paid even when the majter was in ‘the ‘High Court, and ,

= Q) the learned Single Judge overlooked the fact . that an . ' owner also has a right to impose certain conditions and in exercise of that he had imposed the condition that the pur-

_ chaser would have to 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 clearcut contradiction on this point which

‘does not appeat to have been noticed by the Single Judge and per.”

haps not even by the owners because they were concerned more in getting the money as carly as ‘possible. The Division Bench, therefore, accepted the offer of the respondents and passed the following

Order!

“In the vneamennce 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; - oo - . |. The petitioners shall pay sum of Rs, 1, 25, 000/-to the Offidial Receiver on or before August 1, 1983 and thereafter pay the balance sum of Rs. 3,75000 Oby August 29, 1983 to the Official Receiver. a

2. If the aforesaid sums are paid within the dates ' mentioned above, the Official Receiver shall sell the land of the disputed premises No. 7, Duffers Lane, Lilluah, Howrah — *. to the petitioners and to their foltowing nominees who have“ been residing i in the said premises...

At page 90 in ‘The Dictionary of Essential Quoiatons com- oy ~ SADHURAM v. P. B, SARKAR (Fazal Ali, J.) * 597

piled by Kevin Goldstein-Jackson, John Stuart Mill aptly observes © A’ thus: : oe a .

thé sole end for which mankind are warranted, . individually o1 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 - B a ‘over any member of a civilised community, against his will, an ig to prevent harm to others. His.own good, either physical — ’ or moral, is not a sufficient warrant.”

ee 6 wer

Striking; thérefore, a just balance between the claims put forwatd by the appellant and. the respondents, we are convinced that | the Division Bench of the High Court was perfectly justified in accepting the offer of the respondents for the following reasons:

Qa ay (1) that the respondents were prepared to pay much fiigher ; : amount than the appellant (i.e., Rs. 1 Lakh more) even at. the very behest; the appellant did not’pay the balance-of -Rs. 3, lakhs, which was a’ substantial part of the considera- . tion, at the earliest moment as stipulated in the agreement ' but deposited the amount only when the case came up before this Court; -

(2) that possession being 9/10th of title and the ‘Tespon- 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 the F Property notwithstanding the litigation obviously because if , they had become the owners, no one could have challenged

‘their title or possession, e a . . .

_« Insucha situation, therefore

Bench of the High Court has d

_ aboard the technicalities particul

' _ frown over a champartus litigat 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 .r * - Sought to rehabilitate the 38 families of the Tespondent who hud i already built permanent structures. _- : ,

» in our opinion, the Division . G one substantial justice throwing . atly for the reason that courts ion or agreement even though the

"3598 .. + + SUPREMB court REPORTS li9e4) 3 S.C.R. p

ACA Bor the réasons given abave, ” we ‘find ourselves in- complete

* ' agreement with the “judgment of the Division Bench of the High Court which we hereby affirm with the -observations that since the — dates. mentioned ‘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 ceiver

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

* 1984. and shall also imsert a ‘condition that they would be b ying _ yoo the properties notwithstanding ‘the pending: litigation, failing which the appeal shall stand allowed andthe Order of the Single Judge stand restored: In the circumstances of the case, we make no order a VARADARAJAN, 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’ issué..of an intérim order pending consideration of the appeal ~~ “Dp fited against the order of a learned Single Judge of that High Court a dated 18.7.1983 dismissing theit application for being impleaded as defendants in Suit No. 2024 of 1952 .on the file. of that High Court as also in the application of the Official Receiver, Calcutta “High Court affirmed by one Ashok Kumar Rai on 20.5. 1983 and ~ for. staying’ and setting aside that. Court’s earlier orders dated ak 245.1983 and 26.5.1983.

a Suit No. 2024 of 1952 was fled i in. the Calcutta High Court on -*> 28.5. 1952 by -one:-Prasad. Nath Das, husband: of Malati Das and , father of the then minors Prabir, Kumar Das and Pradeep Kumar Das, for declaration and other reliefs in respect of certain properties * F including No.7, Duffer’s Lane, Howrah, hereinafter referred to-as.. - the ‘disputed property’ against certain persons including one Jitendra Kumar Das-who is the second defendant in that Suit. The Official Receiver of the High Court was appointed. as Receiver in. that suit ‘on 11.8.1953.in respect. of certain properties includigg the disputed” *™. . property and he took possession of the disputed property on . oS G £43.8,1953. An application was made in August 1982 forsale oP the 4 “disputed property - and. distribution of the sale proceeds amongst the hee "parties. -entitled~ thereto. On 41.10.1982" C. K. Banerjee, J. passed ~ ‘An order ‘in’ that application for sale .of the disputed Property in vt hese terms:

eh H eran 3 ‘that’ view of the’ matter there will be an order for. sale in terms of prayer (a). In the event the properties are

SADHURAM ¥, P.B. SARKAR Varadrajanye} )

sold by private treaty the Official Receiver will call a meeting of the partiés and obtain their approval to such sale by private treaty. The provisional. allottees or any other party to the suit would be. entitled to bring intending pur- “chasers for the said property. There will.also be an order in . terms of prayer (b). In‘the event the properties are sold the petitioner Ajit Kumar Das would be paid a sum of Rs. 10000 out of the sdle 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 Court.”

It has-to be stated that the learned Single Judge. fixed an upset price of Rs. 3,50, 000 for the disputed . property in that order and there is no dispute about it. -The- appellant Sadhu Ram Bansal offered a sum of Rs. 4,00,000 forthe property to the Receiver by _ ehclosing a draft ‘for his advocate’s letter dated 20.12. 1982. Rs. 1,00,000 being one fourth of the amount and saying that the offer is subject to the’ vendors making ‘out a good and. marketable title fres from encumberances and that the sale will be completed within 6 months or such other time as may be agreed upon in favour .of the ‘appellant or his nominees.

Kumar Das and: ‘others. That méeting was convened in terms of a motion of a meeting dated 23. 12. 1982 for deciding upon-the steps to be taken regarding the intending offers for the sale of the disputed property.

it was decided that the offer of Rs. 4,00,000 made on behalf of the appellant should be accepted in view of the payment” of Rs. 1,00,000 by bank draft.

accepted the offér of the appellant and communicated the acceptance ~ “

The Official Receiver thereupon by his letter dated 13.1,1983 and requested the appellant to deposit the balance of Rs. 3,00,000 at an carly date, in-view of his. prior payment of Rs. 1,00.000 by.-bank. draft

. and sending the. balance of Rs. 3,00,000 to the Official Receiver: - on 88.1983, Subsequently on ‘the application of the Official

Thereinafter, a.meeting was.held before the Official Receiver on 12.1.1983 in’ presence of Prabir Kumar

‘Das and Pradeep Kumar Das and their Counsel as also Jitendra °

-In that meeting all the three offers received by the

“Official Receiver were placed before the parties for their consideration and

In view’ of Court’s: order dated 1.8.1983 another meeting was convened before- the

Official Receiver on 9.8,1983 and the parties to suit agreed in ‘that Meeting to sell the disputed property to the appellant for Rs. 4,00,000-

600 - SUPREME COURT'REPORTS [1984] 3 scr.

_ the suit against them..

® : Receiver,’ P. Banerjee, J. of the Calcutta High Court passed an order dated 24.5.1983 directing the police to’ remove respondents 1 to 4 from the disputed property and put the Official Receiver in Possession thereof on the allegation of the Official Receiver that they had trespassed into the property a few months earlier. . That order was modified ori 26.5.1983 as regards the designation of the Deputy.

Inspector General of Police to whom also the earlier letter dated 24.5.1983 was directed. On 22.6.1983 respondents | to 4 naniely, Pulin Behari Sarkar, Manik .Seal, Gopinath Sarkar and’ Sudhansu Bimal Dey moved the Calcutta High Court for being impleaded as defendants in Suit No. 2024 of 1952-(wrongly mentioned in that application as Suit No. 2024 of 1982) as well as 10 the application

“of the Official Receiver affirmed by one Ashok Kumar Rai on : ~ 90,5.1983 and for staying and setting aside the said orders dated

24.5.1983 and 26.5 1983 as stated above. In that application respon- dents 1 to 4 alleged that they came to know from the police about. the orders dated 24.5.1983 and’ 26.5.1983 on. 18.6.1983, that . Suit. No. 2024 of 1982 (mistake for Suit No. 2024 of 1952) had been filed by Prasad Nath 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 has granted leave to the Official

Receiver to sell the. property either by public auction or by private treaty 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 amount has already been paid to the .Official Receiver Respondents 1 to 4 further stated in that application that they are

‘yesiding on the disputed property with their families under a licence since 1975 and have constructed’ pucca huts thereon and that with knowledge of their continuous possession of the property as licencees since 1975 the parties to the suit have filed the suit among themselves without impleading them (respondents 1 to 4) as parties knowing ~ "fully well that they would not get possession of the same if they filed

‘This application of respondents 1 to 4 was opposed by the

" appellant through a counter-affidavit of his son Sajan Kumar _ Bansal. It 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 ander the unauthorised and illegal occupation of one Kamal Hosiery. claiming to be tenant of

‘the property on a rent of Rs. 100/-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

_ oi

_SADHURAM Y. P. B. SARKAR (Varadarajan, Jy the draft agreement for sale it is stated there is litigation for the last 20 years between the Official Réceiver on the one hand and

Kamal Hodiery on the other and that Seccnd Appeal .No. 1267 of ‘ 1982 filed by Kamal Hosiery against the Official Receiver was pending in the Calcutta High, Court. Denying that there was ‘any such licence as ‘claimed by respondents 1 to 4 it was stated im that — counter-affidavit that in the poceedings taken. by respondents 1 to 4 under 5. 145 of the Code of Criminal "Procedure i in the Court of the Sub-Divisional Executive Magistrate, Sadar, Howrah respondents 1 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 to Suit No. 2024 of 1952 and for staying and setting aside the High .-

Court’s orders dated 24.5.1983 which came up before Monjula

Bose, J. Fhree points were urged before that learned Judge.

The first point urged before the learned Judge was tthe alleged deliberate omission . of the parries to Suit No. 2024 of 1952 to imp-.

lead respondents'1 to 4 as parties with the object of getting a receiver appointed and having the property sold behind their back. The learned Judge rejected that contention of respondents I to 4 in these terms :

“T accept the contentions of the. learned Advocate for the purchaser Sadhu Ram Bansal as also the contentions of _ the Learned Advocate for the learned Official Receiver that deliberate ‘mis-statements have been made in the petition with.a view to impress upon the Court that the suit was filed without impleading the petitioners (respondents 1 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 obtairfed behind the back of the petitioners (respondents 1 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 far back as in 1953. Since that date the suit property is in the possession of. the Official Receiver as officer of the Court. . The petitioners - ~ (respondents 1 to 4) claim to be in possession since 1975 with the leave of one Malati Das and Jitendra Kumar Das. It is significant that the said Malati Das was brought on record only in the year 1977 after the death of her husband _ and in any event no leave or licence could have been gran-' - ted by either Malati Das-or Jitendra Kumar Das when the

“et

"as. s regards the validity of the orders dated 245.1983. and 26.5.1983 - . “made for delivery of possession of the property to the Official Recei- . ver with police aid and without notice to respondents 1 to 4, . It.

SUPREME court REPORTS . 1984] 3 scr.

: Official Receiver was an possession. 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 is thus ‘prima facie apparent and it appears that they have no locus ' standi to intervene in this. proceeding and seek any order to be added as __party- -defendants to the.suit tand/or any other _ proceeding i in connection therewith. ” Lo x

The second point urged before the learned Single Judge ° was was contended before the learned Single Judge on behalf of respon- dents I to 4 that those orders made behind the back of respondents .

i 1.to 4 who would be affected thereby are invalid in law and should, °. ; therefore, be set'aside . The learned Judge. rejected. that contention T° Oe in these terms :!.

“In any event the decision reported j in A. LR. 1957: Calcutta ‘252 is an authority for the proposition.that the Court has unfettered discretion and ample power to do justice ‘The Court is also fortificd in its view by the decision in Hira Lal Patni v. Mookaram Sethiya, reported in A. IL. R. 1962 SC.21 where the Court viewed that under Order

- 40 Rule 1 the Court may remove any person who interferes or intermeddles with the Receiver’s possession In thy view.

' different considerations 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 my mind the orders passed on the 24th and 26th May, 1983 are orders passed by the Court i in the course of the administration of: the estate through. the ageucy of. the ‘Receiver and the said* -orders were passed at the instances of the Receiver in the circumstances stated in the affidavit affymed by Ashoke Roy on 4th July, 1953 It is apparent. from paragraph 5 (ii)

- that certain persons, had entered the premises on the 14th . " March, 1983. requiring the Official ‘Receiver to take steps. with the police authorities and it appears that his letters . 7

‘went unheeded requiring «an application to be made for. seekirig ‘direction upon the police authorities to remnove the | A$ squatters and thereby assistance sought in the administration e >

” SADHURAM y. P. B. SARKAR (Varadarajan, J.)

of the estate by the Receiver. The case reportedin A.I.R.- 1962 SC 21. Hira Lal Patni v. Mookaram Sethiya is an. authority in support of this proposition.* The order for . police help -thys obtained canngt be ‘said to have been.

_ -obtained improperly or by suppression of any fact.” ”

The third point urged by respondent I 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 thirdepoint ....has no merit and is not requiréd to be considered inasmuch as the Court by its order dated 11th — October, .1982 directed that the Official Receiver will sell the

_ property by pudlic auction or private treaty to the highest . ~°s offerer or offerers subject to a reserve price of Rs. 3,50,000 _ and had directed that in the event the: property is sold by _ private treaty the Official Receiver-would call a meeting of the parties and obtain approval for such sale. It appears -from the records of the minutes of the Receiver’s meeting - held on 121.1983 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.ILR. 1970 Sc 2037 is an authority in support of the proposition that once. a Court comes to.aconclusion that the price offered is adequate no subsequent higher offer can cOnstitute’a valid ground for refusing -confirmation. To my mind although the transaction in suit ‘does not require to be confired as the Official’ Receiver was invested’ with the direction. given on 11th October, 1982 the sxid decision with the approval of the parties cannot now be fe- opened and/or Teagitated.”” ”

For the above reasoné. the learned. Single Judge dismissed. the petition of respondents 1 to 4 with costs. Against that order res- appeal respondents" 1 to 4 made an application for an interim order, and it came up for consideration before the Division Bench consisting M..M. Dutt and C. K. Banerjee,.JJ. After. setting out some facts: sTeading to the application filled by respondents 1 to 4 for being

-the property should be ordered to be sold tothem. The learned . : Single Judge re jected that contention in these terms:

. pondents’] to 4 filed an appeal before the Division Bench. In that .

SUPREME couRT REPORTS (1984]:°3 s.cak. .

added as parties to Suit No, 2024 of 1952 as well as in the application of the Official Receiver and for staying and setting aside the High .Court’s otders. dated 24.5.1983 and 26.5.1983 referred to above, what M. M. Dutt, J. who-spoke for the Bench has stated in the order impugned in this appeal is this: *

| _ “At the hearing 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

_.thé petitioners would deposit in Court a'sum of Rs. 1,25,000 being the 25 per.cent of the safe. price within a week: and pay the balance sum of Rs. 3 1s 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 No. 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 to the petitioners. In 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: 2 has not paid the balance sum of the sale price. If the sale had been comple- .

ted their j is no question of any offer being made by the | petitioners 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 has 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 submitted by Mr. Bhabra that those persons are all trespassers without any vestige of title. ‘It is, however, the case ef 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 licence, has denicd granting of such licencé. If the disputed land is sold

* to respondent No. 2 then 38 families who have been resi-

SADHURAM ¥. P. B, SARKAR (Varadarajan, J.)

ding thereon. would be evicted with police help. 1n our’ : opinion the Court should do social justice and in doing such justice no technicality of law will stand in its way. “Social justice requires. that the disputed land should be sold to the petitioners and other residing on the disputed land. More-_ over, the petitioners have offered to. pay a price of. Rs. 5,00,000 that is to say, Rs. 1,00,000 more than the offer of the respondent No. 2. In the circumstances, we vacate the said two orders of the: learned Judge dated 24.5.1983 and 26.5.1983 and set aside the © impugned order dated July 18, - 1983,” 7 .

_ _ The learned Judges directed. respondents 1 to 4 to-pay to the Official Receiver a sum of Rs. 1,25,000 on or before 1.8.1984 and the balance of 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 particulars and have observed ’ that in the évent 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 18.7.1983 shall stand confirmed. -

Thus it is seen that: the learned Judges of’ the Division Bench have set aside the impugned order of the learned Single Judge dated

18.7.1983 and directed the sale of the disputed property to ‘respon-

’ dents 1 to4and their 34 nominees subject to the condition that “respondents 1 to 4 deposit a sum of Rs, 1,25,000 by 1.8. 1983 and the ‘ palance 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 approved 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 9.8.1983, as stated above, is necessary or not. They

“have at the same time observed in their impugned order that the order dated "18.7. 1983. of the learned Single Judge will stand confirmed if respondents 1 ‘to 4 failto deposit the sum of Rs. 1,25,000 py 1.81983 and the balance of Rs. 3,75,000 by 29.8 1983, The learned Judges of the Division Bench have thus left in tact the order dated 18.7.1983 of the learned Single Judge ‘in the event of respon- :

dents. 1 to 4 not taking advaritage ‘of the opportunity given to them in the name of social justice to purchase the disputed property for

"606, OC SUPREME COURT REPORTS. a L984) 3 SC.

_ Rs. 5 £00,000 by p paying that amount in two instalments as aforesaid.

Hence this appeal by special leave.

With respect to the learned Judges: of the Division, Bench of

‘the High Court I'am at a Loss to -understand how their order which virtually disposes of the appeal filed by respondents { to 4. against the order of the learned Single Judge ‘dated 18.7.1983. declining to add them as patties to Suit No: 2024 of 1952 as wellas in the | application moved by the Official Receiver in May 1983 and to stay and set aside the orders’ dated 24.5.1983 and '26.5.1983 -and directs ’ 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 instalments” _ as mentioned above could be made in an application which has been filed. by respondents 1 to 4. for. onf¥ an interim .prder pending disposal of the main appeal. filed against the order of the . learned

. Single Judge dated 18.7.1983. Lalso fail to’see what remains to be

‘done by the Jearned Judges of the Division Bench in the main’ .

‘ appeal filed by respondents 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 Judges of the Division Bench has now become totally redundant and unnecessary; for what respondents

1 to'4 wanted has been ordered‘in their favour'viz., setting aside the

' orders dated 24.5.1983 and 26.5.1983 which is one of the prayers in:

thé application made before the learned Single Judge and the sale of thé property in their favour and in favour of their nominees for

Rs. 5,00,000 subject to payment of that famountin 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’ " granted even before they had been impleaded as parties in the’ suitor inthe 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 ordet made in the application filed only for interim relief. This must strike any one as an extraordinary feature in this case, and. .

therefore think it must: be noticed before proceeding -to consider the ves merits of the case in the light of the arguments advanced by Mr.

* poe

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

Sanghi, Senior Counsel appearing for respondents 1: to4 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 benefit of purchasing the disputed

‘property: on rank trespassers, not ordinary trespassers in respect of.

SADHURAM ¥. P. Be SARKAR (Varadarajan, J)

property in the possession of some private individuat who is. not vigilant about his rights but trespassers in respect of property v ich is in custodia legis tarough a Receiver who was vigilant enoug to” mov ethe Court for a direction that the police to remove respondents

A-

1to.4 from their unlawful possession of the disputed property and - put him in possession thereof after his own letters to the. police fot’

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 cofmitted 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 rank

" trespassers in respect of .the disputed property which is in custodia

“legis. 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 as a legal representative of her husband Prasad Nath Das only in 1977 and she appeared in Court and denied having mentary 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 the -alleged: grant of the licence.

Jitendra Kumar Das 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 granted any’ such licence to respondents 1 to 4. There is no docu- °

Receiver to the appellant by private treaty. It is. impossible that , such a valuable property has been allowed to be enjoyed by respon-. dent | to 4 for no benefit or consideration to the .owners by ony of the owners of the property. Respondents Ito: 4 had no consistent case about when the alleged leave was granted. Inthe present proceedings their stand is that it was granted in 1975: - But in 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 1948 as stated above. Therefore, factually 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 “tight” 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 Division Bench on the - basis of their admitted possession of the property. The. contention that their

608 , _ _* SUPREME COURT REPORTS [1984] 3 s.cr.

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

In paragraph 801 and 808 at pages 403 “and 407 of Halsbury’s -Laws of England, Fourth Edition, Volume 39 we find the following

BR _- Passage: - oy | “A receiver is a person appointed for-the collection or ‘protection of property. He is appointed either by the court or out of court by individuals or corporations. If he is appointed by the court, he is an officer ofthe court deriving his authority from the court’s order.’ If he is appointed out of court, he isan agent and has such powers, duties and liabilities as are defined by the instrument or statute under ‘which he is appointed and derive from the general law of 7 agency......A receiver appointed by the, court is in no sense an agent or trustee for the party at’ whose instance the - D . _- ‘appointment is made. He is an officer of the court appointed for the benefit’ of all the parties to the action, and ‘their tights among themselves are not affected.”

. ‘In Kerr on Receivers, Fifteenth Edition, we find the following passage at page 155: ;

“A person. who disturbs or interferes with the possession 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 satisfied with ordering | F the party in contempt to pay the costs and éxpenses occasi-

. oned by his improper conduct, _and also the costs of the’

application to commit. an

‘THs Court has observed in . Everest: Coal Compo (P) Lid. v. State of Bihar & Others ) thus:

Gy . “When a.court puts a Receiver in possession of property, the property comes under court custody, the Receiver being merely an officer or agent of the court. Any obstruttion or interference with’ the court’s possession sounds in contempt ‘of that ‘court. Any legal: action in * respect of that property is in a sense such an interference

() [1978] 1S,C.R. 571 at $73,"

SADHURAM y. PB. B’ SARKAR (Varadarajan J.) and invites the contempt penalty of likely in validation of __ the, suit or other proceedings.”

It. is not disputed that after the institution of Suit No. 2024 of 1952 in the High Court, the Official Receiver was appointed as Receiver in respect of the disputed property on 11.8.1953 and that he took possession of the same on 13.8.1953 and it continues to be in custodia legis through the Receiver since then. This has been found by Monjula Bose, J. in the order dated 18.7.1983. When-the property is in custodia legis neither Malati Das nor Jitendra Kumar

Das, who may have rights of ownership in the property, could grant any licence in 1975 or at anytime. 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 propertyhad been obtained by respondents 1 to 4 pursuant to any such grant of licence it would, in law, be only that of trespassers. Therefore, even on the admitted case of respondents. 1 to4 that their possession. started in 1975 as licencees, in the light - of the the undisputed fact that the Receiver got into possession of the property as far back as in August 1953 under the orders of the Court, ‘the possession of respondents 1 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 {respassers in respect of the property whichis in custodia legis. Their possession and conduct have to be frowned ipon by the Court and not treated as grounds for conferring a benefit on them 'to purchase the property al-beit fora higher amount than the. amount for which the Official Receiver has agreed to sell the property to the appellant with the approval of the parties to the suit. The learned Judges of the Divi- sion Bench have treated this illegal act’of trespass of respondents

Ito 40n the property which is in custodia legis as the ground for conferring the benefit on them in the name of social justice, and tt

‘ is this order which Mr. Sanghi, with all his vehemence, wants this Court to cOnfirm. In my view it: will 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 Jaw could be committed. In these circumstances, I am of the opinion that no relief could be granted to respondents | to 4 who are trespassers in respect of the property in custodia legis on the basis of their wrongful possession which isa continuing act of contempt ‘of the

Court.

-Mr. Sanghi invited this Court’s attention to the Calcutta High

‘SUPREME COURT REPORTS [1984] 3 s.c.R. Court’s order dated 11.10.1982 for the sale of the disputed property particularly to the portion thereof which says that Rs. 10,000 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 deposit every time for a term not exceeding one year. A sum of Rs. 1,00,000 was sent bya bank draft to the official Receiver along with the offer made on behalf of the appellant for purchasing the property for Rs. 4,00,000. According tothe offer made in that letter the appellant had to pay the balance of R&. 3,00,000 within six months from 13.1.1983. Mr. Sanghi invited this court’s attention to the non- payment of the ' balance of Rs. 3,00,000 until it was sent to the Receiver on 8.8.1983 in spite of the Receiver asking for its pdymeit at an early date by

"his letter dated 13.11983 by which hé had communicated the appro-

| _ val 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 the property by private treaty. Mr. Sanghi next invited this Court’s attention to the fact that in the parties’ meeting held before the

. Receiver on [2.1.1983 to consider which of the 3 offers made to the

Official Receiver could be accepted Mr. D.N. Mitra, Advocate for Prabir Kumar Das and Pradeep Kumar Das -had stated that they

_ have no objection to the sale subject.to’ the appellant agreeing to purchase the property subject. to pending litigation. The pending

_ litigation referred to. by Mr. Mitra evidently refers to’ 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 encumberances. The Official Receiver has not referred to that condition 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 purchase'the 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 had accepted the appeliant’s offer even in the subsequent meeting held on 9.8. 1983

_ after the appellant. had sent the balance of Rs. 3,00,000 on 8.8. 1933 to the Receiver. Mr. Sanghi submits that there was a counter-offer by reason of the siatement made on tehalf of the two plaintiffs Prabir Kurrar Vas and Predeep Kumar Das in the meeting ccnvened r . .

SADHURAM v. P. B. SARKAR (Sabyasachi Mukharji, J.)

by the receiver on 12.1.1983 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 therg should have been a. fresh acceptance by the appellant thereafter, and he has not done ra so and therefore there is no concluded contract. There is.

no such conditional acceptancé as the condition required by Prabir |

Kumar Das and Pradeep Kumar Das has not been specially communicated to the appellant by-the Official Receiver for his acceptance. Therefore there is no merit in this contention of Mr. Sanghi.

_ Mr. Sanghi next submitted that respondents 1 to 4 have ‘offered Rs. 5,00,000 for the disputed property and that since the owners of the property stand to gain a sum of Rs. 1,060,000 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 nominees should be confirmed.

Respondents 1 to 4 are trespassers in respect of the property which is in cusfodta legis and they are in contempt of the Court. They cannot be allowed to continue t0 bc in contempt and urge it asa ground for obtaining the benefit of the sale of the property in their favour, Ifthe 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 1to4 to raise ‘any Objection. The offer has been ‘accepted rightly or wrongly more than once and therefore the appellant may have a right to 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 tothe delay of about a month in paying: the balance, of

Rs. 3;00,000 by the appellant. In Kayjay Industries (P) Ltd.v. Asnew °

Drums (P) Ltd: & Others () it has been held that the executing court had committed no material irregularity in the conduct of the

. sale in accepting the highest offer and concluding the 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

Receiver appointed by the Court is not governed by the provisions “of Order -21 rule 89 of the Code of Civil Procedure which enables the persons specified in sub-rule | to have the sale held in execution (a) [1974] 3 SCR 678. (2) [1960] 2 SER 198

SUPREME COURT REPORTS ° [1984] 3s:crR. >| proceedings set aside on the two conditions therein mentioned being satisfied, namely, as regards the depasit of poundage, balance of decree

* amount due etc. In that case,asin the present case, the Receiver was given liberty to sell the property ‘by private treaty or by public | auction. In ‘Tarinikamal Pandit & Others vy. Prafulla Kumar -

Chatterjee (4) we find the following observation :

“The procedure envisaged - for sale generally and sale ofan immovable property under Order 21 is sale by public

_ auction. Sale by a Court through the Receiver appointed’

‘by Court is not contemplated under these provisions......A

Receiver is appointed under Order 40 Rule i and a pro- petty, can be sold by the Receiver on the direction of the . Court even n by private negotiation.”

In the present case e 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 to sell the property either by public auction 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 con-

_ firm 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 1 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 had become final, orto hold that sub- sequent offer made by respondents .1 to 4 to purchase the property for 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. T am unable to -pursuade myself to hold that the benefit claimed on behalf of respondents 1 to 4—I would not call it a right, for there is no corresponding obligation—can 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 Judges of the. Division Bench’ were not right in interfering with ‘the well considered order of the learned Single Judge Monjula Bose, J. by

(1), [1979] 3.SCR 340

SADHURAM >. P. B, SARKAR (Sabyasachi Mukharji, J.)

their order made in the application of respondents 1 to 4 for a mere interim order pending coasideration of the appeal preferred by them against that order of the learned Single Judge dated 18.7. 1983 in the manner done by them which has rendered- the main.appeal itself redundant and wholly uanecessary as stated above. The impugned order of the learned Judges of the Division Bench which purports to stand on the fragile and imaginary prop of social justice has no legs in lawto stand and cannot b2. allowed in law_to stand. I would, therefore; allow the appzal and szt 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 I to 4.

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

- concurrence with’ the order proposed, Though the controversy arises ina long pending litigation, the question before this Court lies "within a short compass.

Premises No.7, Duffers Lane, Howrah, 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 premises’. Suit No. 2024 of 1952 was filed in’ the High Court of Calcutta on May 29, 1952 by: one

Prasad Nath Das‘claiming a decrée for construction of the will and:

_.testament of the said Radha Kanta Das since deceased and for declaration that the purported will dated May 22, 1952 executed by one Jitendra Kumar Das, since deceased 1 in respect, inter alia, of the disputed premiscs was invalid, void and for other reliefs. The Official Receiver was appointed receiver over certain properties belonging to or alleged to have belonged to that estate including the disputed premises on or about August 11, 1953. Some of the parties (o 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 11, 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 highest 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 allottees or any other party to .

614 SUPREME COURT REPORTS , [1984 38.0, r-

‘A the suit would be entitled to bring intending purchasers for the same.” On December 20, 1982 by a letter, an offer was made to the. Official Receiver for purchase of the said premises for Rs. 4,00,000 .

. On behalf of the present appellant. ‘The said letter contained the following :— ;

B ’ “We make an offer for purchase of the above property -

. for Rs. 4,60,000 (Rupees four lacs) subject to the Vendors’ 4? making out a good and marketable’ title free from encam- a brarices.”’

A Bank draft for Rs. 1,00,000 in favour of the Official Receiver C was also sent along with it. Ata meeting held on Jan. 12, 1983, the said offer along with two other offers were considered by the représen- ’ tatives and advocates appearing for the different parties in the suit. _ It appears that parties more or less agreed that the offer received on behalf of the appellant was best but one Shri B.N. Mitra, represen- Y 4° ting his. client observed that it might be accepted subject to the appellants agreeing “to purchase the same land, with pending litiga- ‘tion in respect of the said property.”’ It may be mentioned that the terms in which the Official Receiver intimated by letter dated ~ January 13, 1983 addressed by the Official Receiver to the advocate of the present appellant contained the following :—

“This is to inform you that your client’s offer of. a Rs. 4,00,000 for the purchase of the above _Bremises has lon been accepted. ;

‘You are, therefore, requested to advise your .client to 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 the offer was subject to the appellant’s agreeing to ‘purchase the land with pending litigation in. respectof A the said land. The offer of the appellant which had been originally ’ G communicated did not contain any condition that the offer to pur- "chase was subject to pending litigation. It was, therefore, urged before us that there was no 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 counter offer. The Division Bench of the High Court came to-the conclusion that there was no concluded contract, - Such a view isa view which is possible to take, and as such the ~4—~ Division Bench proceeded on the basis that there was no concluded _

SADAURAM ¥. P. B. SARKAR (Sabyasiach Mukharji, J.)

| bargain between the appellant and the parties represented by the

_ receiver. It may, however, be mentioned that in February, 1983, it is stated, certain documents- were forwarded to the appellant’s - advocate. It may be mentioned that in the letter referred to herein- - before dated December 20, 1982, the appellant had also stipulated that the sale be completed*within six months or such further exten- ded time as may be agreed upon in one or more lots by one or more gale deéds in favour of the appellant or this nominee or nominees.

The letter dated. January 13, 1983 by,the Official Receiver also requested the appellant to deposit the balance sum at an early date. It may be mentioned that the said balance sum was deposited after

- August, 1983 after the special leave was granted’ in ths matter by this Court. Itis 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 asking th appellant for the money.

‘tis alleged that in February, 1983, fire broke out in the factory: adjacent to the premises in question and fire brigade men had entered into the premises by breaking a portion of the well to get access to'the pond inside the disputed premises. It is the case of the appellant that on Match 14, 1983, the respondents nos. 1 to 4 along with some miscreants had forcibly entered into the disputed premises. - This, however, is disputed by the contesting respondents nos. [ ‘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 police 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 fainili¢s with the leave and licence of one of the co-owners were residing in the premises in question since .1975 and had construicted pucca huts and structures and in spite of the same, according to the said respondents, the appellant did not inform the court of - . the said fact before obtaining police help against them. The said | respondents claimed that they were licencees under the’original owners, Smt. Malati Das and Jitendra Nath Das, in-certain specified

‘ plots mentioned in their application. They further alleged that on-

May 2, 1983, they had come to know that the appellant had obtained * ex-parte order from ‘the Sub-Divisional Magistrate (Executive) direc-

. ting the Superintendent of Police to restore possession of the premises in dispnte by arranging police help. The applicants had

SUPREME COURT REPORTS — [1984] 3 s.c.x, 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 polices regarding possession of the said applicants in the said disputed premises. eihe Sub-Divisional Magistrate, it was alleged, did not pass any P order and was pleased to direct’ to put up the said application on May 7, 1983. Though no formal order was passed the said application was kept on record.

‘The applicants further alleged that coming to know that certain other order might be passed, the applicants moved a ievision application under the Criminal Revisional 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 under Section 145 of the Code of Criminal Procedure is pending.

The pendency of the proceedings under Section 145 of Code - of Criminal Procedure and order, if any, passed thereon does not in any way affect the title of the parties to the disputed. p emises though it reflects the factum of possession. See the decision of this Court in the case of Bhinka and Others v. Charan Singh. ()

; It is in this background that the applicants in their application before the learned Single Judge of the High Court prayed that their claim to be in possessi6n and their right to be in possession should “be determined. and as such they should be added as defendents to the suit and as 4 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 bya learned Single Judge of the High Court and by an order passed and judgment delivered, the jearned Judge rejected the application holding that the respondents nos. } to 4heing the applicants therein were tresspassers and had no right to be in possessi: jn of the premises after the Official Receiver had been appointed receiver and 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 Official Receiver.as receiver “appointed im 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 premises in dispute, the learned Judge rejected the said offer and: dismissed their application.

(1) [1959] Suppl. 2S.C,R. 798, aad

. default in paymga sum of Rs. 1,25,00

SADHURAM Y. PB. B. SARKAR (Sabyasachi Mukharji, J.)

As mentioned hereinbefore there was an appeal from this

- decision to the Division Bench of the High Court. The Division

Bench was of the view that the offer made on behalf of the respon- dents nos. 1 to 4 should be accepted. The Division Bench took the. _ view that there was no concluded contract for sale in favour of the present appellant. "The Division Bench was of the view that there was not then any completed sale. The Division Bench further noted

‘ 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 -yestige of title. Itis however, the case of the petitioners that they haye 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 licence, . has denied granting 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 Jaw 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 isto say Rs. 1,00,00 ‘more than the offer of the respondent No. 2.”

The Division Bench directed that Rs. 1,25,000 should be paid by present respondents! to 4 on or before August 1, 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 appcal was granted ’

by this Courtanda stay had been obtained. It may be mentioned

’ that the balance of the considerstion of Rs. 3 lacs offered by the present appellant has been paid only after the special |

3 . . | leave had been obtained from.this Court. The Division Bench further 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 further directed thatin case the respondents 1*to 4 committed oe the cat 0 or 3,75,000. withi stipulated time, the said order would stand vacated and the . were

6i8 "SUPREME COURT REPORTS [1984] 3 SCR.

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

it is the validity and the propriety of the said order which is - impugned in this appeal. The question mainly is whether there was a.concluded and confirmed sale in favour of the appzllant and if not could the Court direct the disputed ‘premises to be conveyed to respondents nos. 1 to ‘4 for the benefit of 38 families relying on = ’ : social justice.

Oa the question whether i 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 sale or a sale by the receiver and whether confirmation of the court was required for such a sale. Some of the decisions cited at the Bar on ‘this point have been noted by my Brother. Jn the view I have taken it is not necessary in this case ~*~ Y. to decide whether a confirmation of sale by the court in the circum- .Stances under which the property was directed to be sold was necessary or not, though it may be sufficicnt to yote that there was some divergence of opinion on this point. On the nature of the possession

‘by the receiyet and how interference with such possession should. "be dealt with by law haye also been noted in the observations in - Halsbury’s Law of England; 4th Ed., Volume 39 pages 451 and 452, paragraphs 890 and 891.- See also Kerr On Receivers—\Sth Edition’ page 155 and also Kerr On Receivers—i6th Edition pages 121 and A. - 422, It is well-settled that when the property is in custody of a receiver 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 patty 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 receiver ‘or sanction of the court. It was urged that in as much as no such leave had beén obtained by the respoud2ats mos. | to 4, possession, if any, of the said respondents a ’ or entry into the land by the said respondents at a time whén _indisputably there was receiver was illegal. In view of the facts that 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 the entry of the respondents nos. 1.to 4 was legal or illegal. It may be mentioned, however, that so long as proceedings under: Section 145 of Code of Criminal Procedure were pending before the appropriats court, without any adjudication of the respondents nos. 71 o>

SADHURAM y, Pc B, SARKAR (Sabyasachi Mukharji, J.)

10 4’s right to-be in possession and directing that they be physi- cally ejected by police help without hearing them or without notice to the m is not a correct legal position to take for. court of law administering justice. But it is not necessary for the purpose of this appeal to express any final opinion on that.

It appears in the background of the facts and circumstances of the cage 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 136 of the Constitution. Assaming even that though not legally but as a

_teality of fact, the respondents nos. | 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 made by the appellant to purchase the premises in dispute seems to be rather low in the context of facts and circumstances prevailing in such areas nearabout Calcutta. The area comprises of about six bighas.i.c. about 120 cottabs' of Jand. It has been suggested in one of-the affidavit on behalf of respondents nos. | to 4 that the prices prevalent in those areas are about.Rs. 14,000 per cottah., Therefore it was suggested that in the transaction between the appellant and receiver or with the 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: (1) there is not a concluded contract in favour of the appellant. This view has-been accepted by the Division Bench. It is a p&ssible view. This view should not be interfered within appeal under article 136 of the Constitution; .and (2) the fact is that the respondents I 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. Illigitimacy of entry does not debar them from offering a higher price in purchasing a property, contract for sale in respect 8f which has not yet been concluded, and (3) the property is in custodia legis.

“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°

"any proper adjudication of the right of the respondents nos. 1 to4 -

@ to them would cause non-interference with their continuance are factors which the court can and should take into consideration in deciding the controversy in this case. (5) There has not indeed been to be in possession of the premises in question and even if their entry was tainted with illegality, it is not of such a magnitude, in view of subsequent facts that because of illegitimate entry, they will be deprived of the right to bargain on prop2r terms to pirchis2 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 at the expense of thé bona fide purchaser at a court sale, As I see the facts, the basis upon which this question is pesed 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 been, 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 to the community 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 justice is $ne of the aspirations of our Constitution. But the courts, we must remember are pledged to administer. just’ce as by law established. In formulating the . concept of justice, however, the inarticulate factor that large number - of human beings shotild not be dislodged from their possession if

‘it is otherwise possible to do’so cannot but be a factor which must and should influence the minds of judges in the facts of this case.

‘It is true that the persons who were alleged to be in possession are with unclean hands but they came for shelter and built in hutments.

They do not want to legitimise théir stay by illegal entry, they want to be rehabilitated at competitive bargain price. Should they be.

denied that opportunity on the ground of their original illegitimacy ? I am definitely of the opinion that in these circumstances they should not be so denied rehabilitation. In administering justice—justice according to lawin this case, no law is breached in the view taken o>

“ SADHURAM P, P. B, SARKAR (Sabyasachi Mukharji, J.)

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

Bar : Association in its report in 1964 had observed that jurisprudence has shifted away from finespun technicalities and abstract rules to _- practical justice to a recognition of human beings, as the most distinctive and important feature ,of the universe which confronts our senses, and of the function of law as_ the historic means of guaranteeing. that preeminetice. (See ‘The Fourteenth Amendment - Centennial Volume Edited by Bernard Schwartz. page 10). Itherefore respectfully agree with Brother Fazal Ali when he says.that ‘in administering justice—social or legal, jurisprudence has shifted away from finespun technicalities and abstract rules to recognition of human beings as human beings.

Tt is true that.original entry was illegal and we- are sometimes - urged ‘‘to doa great right, do a little wrong’? (See the plea of:

Bassanio in Merchant of Venice). Inthis case, however, the court has done no legal wrong at all. The court has only ignored the non-compliance of not seeking court’s leave for the alleged grant of licence, - :

In administering justicey or social legal, we do well to bear ,in mind the words of Justice Holmes “The life of the Jaw has-not been logic: it has been experience. The felt necessities of the time, the prevalent. moral and ‘political theories, intuitions of public policy, avowed or unconscious, even the preiudices which judges share with their. fellow-men, have had a good deal more to do than the syllo- gism in determining the rules by which men should be governed

The Jaw 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 mathematics. In order to know what it is, we must know what it has been, and what it ténds to become. We must alternately consult history and existing theories | of legislation. But the most difficult labour will be to understand the combination of the two into new products at every stage. The substance’ of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its

. form and machinery,’ and the degree to which it is able to work out desired results, depend very much upon its past.” (The Common

Law’ by Oliver Wendell Holmes~Edited by Mark De Wolfe Howe-.

Lecture I—~page 1).

‘

The felt necessities of time and in this-case the convenience of | the situation and the need for adjusting the rights of a larger number

622 . , SUPREME COURT REPORTS "| [1984] 3. s.cR | | Z a

A of people without deprivation of dny accrued right of anybody would be justice according to law. Before we reject social justice’'as some- - thing’ alien to legal justice, we should remember that a meaningful definition of the rule of law must be based on the realities of contem- - porary societies and. the realities of the contemporary societies are~ men are in acute shortage of living accommodation 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 infiltration ‘by bye-lanes’. ‘

Cc. In‘that view of the’matter, I hold that there is no merit in this appeal. Iagree with the order proposed by Brother Fazal_,Ali and the reasons given by him. my

NVK. | ppt denis 7 y-

Text of the official Supreme Court Reports (S.C.R.) edition, extracted from the court’s PDF. Page headers and margin letters have been removed; a stray one may remain inside a paragraph. For citing, rely on the official PDF.

Sadhuram Bansal v. Pulin Behari Sarkar & Ors.

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