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PETITIONER: SADHURAM BANSAL

       Vs.

RESPONDENT: PULIN BEHARI SARKAR & ORS.

DATE OF JUDGMENT26/04/1984

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA VARADARAJAN, A. (J) MUKHARJI, SABYASACHI (J)

CITATION:  1984 AIR 1471            1984 SCR  (3) 582  1984 SCC  (3) 410        1984 SCALE  (1)997

ACT: Code of Civil Procedure 1908, Order XL      Receiver appointed  by  Court-Property  in  custody  of receiver-Interference with  possession not to be encouraged- No party  can  acquire  title  or  right  over  property  in possession of receiver.      Code of Criminal Procedure 1973, Section 145      Order passed in proceedings under this section-Does not affect  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.

HEADNOTE:      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 letter enclosed 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  lakh by bank draft. The  Official Receiver  accepted  the  offer  of  the appellant, communicated  the acceptance  and  requested  the appellant to deposit the balance amount.      The Official  Receiver, thereafter moved the High Court for directions  to remove  respondents 1  to 4 on the ground that they  had trespassed  into the  property a  few  months earlier. Respondents  1 to  4 moved an application 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 possession, the parties to the suit have filed the  suit among  themselves  without  impleading  them (respondents 1 to 4).

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583      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 lakh more than 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 immediately 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 technicality  of law would stand in its way.      Dismissing the Appeal to this Court, ^      HELD:  [Per   Fazal  Ali   &  Sabyasachi  Mukharji,  JJ Majority]      In administering  justice-social or legal-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. It is improper  for this  Court in  exercise of  the discretion vested under  Art. 136 of the Constitution to interfere with that decision.                                             [595-FG; 622A-B]      [Per Fazal Ali, J.]      1.  In   our  opinion,   there  appears   to  be   some misapprehension about what actually social justice is. 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 deal is made with one party without serious detriment to the other, then the Court would lean 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.  It is  in response  to  the  felt necessities of  time and  situation in  order to  do greater good to  a larger  number even  though it might detract from some  technical   rule  in   favour  of   a  party.   Living accommodation is  a human  problem for  vast millions in our country.[595B-D]      2. Call  it social  justice or  solving a socioeconomic 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 been adopted by the court.      3. Justice-social,  economic and  political-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.                                                  [595H-596A]      4. The  Division Bench  of  the  High  Court  has  done substantial justice  by throwing  aboard the  technicalities particularly  for  the  reason  that  courts  frown  over  a champartous litigation or agreement even though the same may be valid. The Division Bench by its decision got more 584 money for  the owners  on the  one hand  and one  the  other sought to rehabilitate the 38 families of the respondent who had already built permanent structures. [597G-H]      In the  instant case,  the Division Bench was perfectly justified in accepting the offer of the respondents because: (a) the  respondents were  prepared to  pay Rs.  1 lakh more than the appellant and the appellant did not pay the balance

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of Rs.  3 lakhs,  (b) possession  being 9/10th of title, the respondents  being   in  actual  possession  would  have  no difficulty in  becoming the  owners,  (c)  respondents  were prepared   to    purchase   the   property   notwithstanding litigation, because  if they  became  owners  no  one  could challenge  their  title  or  possession.  The  Single  Judge completely ignored  two material aspects: (a) that a bulk of the consideration  money viz. Rs. 3 lakhs out of Rs. 4 lakhs was not  paid by  the appellant,  and (b) that an owner also has right  to impose  certain conditions, and in exercise of that, the condition that the purchase  would have to buy the land subject  to the pending litigation was imposed [579C-F; 5 6A-D]      (Per Varadarajan, J. dissenting)      1. The  Division Bench had 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  made by respondents 1 to 4 to purchase the property for  Rs. 5  lakhs should be accepted merely because it appears  to be     advantageous  to  the  owners  of  the property in the name of social justice. [612F]      2. The  benefit claimed on behalf of respondents 1 to 4 which cannot  called a  right, for there is no corresponding obligation-cannot be  equated with  or even brought anywhere near the  social 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 continue to be in contempt and  urge it  as a ground for obtaining the benefit of the  sale  of  the  property  in  their  favour.  If  the appellant has  not complied  with any  condition it  may  be ground for  the owners  and the  Official  Receiver  not  to accept his  offer and refuse to sell the property to him and not for respondents 1 to 4 to raise any objection. The offer has been  accepted rightly  or wrongly  more than  once  and there fore  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 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 sold by  private treaty  and the  Official Receiver 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 585 or confirm  such sale. The parties who are sui juris must be deemed to  have known their interest best when they chose to approve the  sale of  the property for Rs. 4 lakhs in favour of the appellant notwithstanding the fact that respondents 1 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] 1 SCR P. 571 at P. 573, Kayjay Industries (P) Ltd. v.  Asnew Drums  (P) Ltd & Others, [1974] 3 SCR P. 678, Jibon Krishna  Mukherjee v.  New Bhee  bhum Coal  Co. Ltd. & Apr., [1960]  2 SCR  P. 198.  Tarinikamal Pandit & Others v. Prafulla Kumar Chatterjee, [1979] 3 SCR P. 340, referred to. (Per Sabyasachi Mukherji, J)      1. The pendency of the proceedings under Section 145 of the Code  of Criminal  procedure and  order, if  any, passed thereon does  not in any way affect the title of the parties to the  disputed premises  though it  reflects the factum of

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possession. [616D]      Bhinka and  Others v.  Charan  Singh,  [1959]  Supp.  2 S.C.R. P.798 referred 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 no party can acquire any title or right by coming in or over the property which is in the possession of the receiver or sanction of the court[618F]      Halsbury’s Laws  of England,  4th Edn.,  Vol, 39  pages 451,452 paragraph 890,891: Kerr On Receivers-16th Edn. pages 121 referred to.      3. The  concept to  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  is  primarily  a challenge to  the society  at large  more than  to the court immediately. Social justice is one of the aspirations of our Constitution. But  the courts,  are  pledged  to  administer justice as by law established.[620F]      In the  instant case,  in formulating  the  concept  of justice, however,  the inarticulate factor that large number of  human   beings  should   not  be  dislodged  from  their possession if  it is  otherwise possible to do so cannot but be a  factor which  must and  should influence  the minds of judges. 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  be rehabilitated  at   competitive  bargain   price.   In   the circumstances they  should not  be denied  rehabilitation on the ground of their original illegitimacy.      4. 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 of 586 people without  deprivation of  any accrued right of anybody would be justice  according to law. Before social justice as something alien  to legal justice, is rejected, it should be remembered that  a meaningful  definition of the rule of law must be based on the realities of contemporary societies and the  realities   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’. [621H-622B]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 5887 of 1983.      Appeal by  Special leave  from the  Judgment and  Order dated the 25.7.1983 of the Calcutta High Court in Appeal No. 271 of 1983.      S.S.Ray, S.N.Kaker,  P.K.Mullick, R. Deb, N.P.Aggarwala and B.P.Singh for the Appellant.      G.L. Sanghi, and H.K. Puri for Respondent.      Anil Dev Singh and Ashok Sil for Respondent No. 5.      The Judgment of the Court was delivered by      FAZAL ALI.  J, This appeal by special leave against the judgment of the Calcutta High Court discloses an unfortunate litigation which  proves the  well-known legal  maxim "delay defeats justice"  and arises  out of  a Will executed by the

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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 being, if sold.      As a  result of  internecine dispute between the heirs, an Official  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 the heirs. Meanwhile, some more  events  followed  which  made  the  task  of  the Receiver both complex and complicated as the respondents put up their  claim to  possession of  the  property  either  as trespassers or as licensees from some of the heirs. 587      Thus, while  the negotiations  for the  private  treaty were going  on a 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, a 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 vacant possession became "sadder and wiser" to sell the property if they could  get a  handsome amount  for the  same. A bargain was, therefore,  struck, with  the approval of the Receiver, by which  the entire  property was  agreed to be sold to the appellant for  a 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 interest  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  trespassers 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 of the  Criminal Procedure Code had already started, the law had to  take its normal course. So far as the criminal court it concerned,  the only  course which could at best be taken was to declare possession of the party who was in possession two months  next before  the initiation  of the  proceedings under s.145  or  of  the  party  who  was  found  to  be  in possession of the property at the relevant time.      The relevant portion of s. 145 may be extracted below:           "145 Procedure  where dispute  concerning land  or                water is likely to cause breach of peace. 588           (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

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    dispute, peruse  the statements  so put  in,  here  the      parties, receive  all such  evidence as may be produced      by them,  take such  further       evidence, if any, as      he thinks  necessary, and,  if possible, decide whether      any and  which of  the parties  was, at the date of the      order made  by him under sub-section (1), in possession      of the subject of dispute:           Provided that if it appears to the Magistrate that      any party has been forcibly and wrongfully dispossessed      within two  months next  before the  date on  which the      report of  a police  officer or  other information  was      received by  the Magistrate,  or after  that  date  and      before the  date of his order under sub-section (1), he      may treat  the party  so dispossessed  as if that party      had been  in possession  on the date of his order 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  possession  thereof  until  evicted      therefrom in  due course  of law,  and  forbidding  all      disturbance of such possession until 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 summaries the facts of the case, most of which have been reflected in what we have said above.      The story  of the  case begins  with the execution of a Will and 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  also  some premises in  No. 211,  old China Bazar Street, Calcutta. The suit was  instituted for  a declaration  that the  aforesaid Will was void and invalid, hence the legatees under the Will had no  right, title  or interest. The suit went on dingdong from one  stage to another until 1973 when, according to the respondents, two of the owners, viz., Smt. Malati Das and 589 Jitendra Kumar  Das  or  at  least  one  of  them  put  them (respondents) 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 controversy in this case.  It appears  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  31th May, 1983 the Official Received authorised the appellant  to take steps for protection of the property. It  is  difficult  to  appreciate  how  before  a  concluded contract and  a conveyance  in favour  of the appellant, the Official  Receiver   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

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directing the police to remove the unauthorised occupants On June 22, 1983 respondent Nos. 1 to 4 made an application for being  added  as  parties  to  the  said  pending  suit  for recalling the  order for  police help to eject them from the premises in dispute.      In the  said application  four of the respondents, viz, Pulin Behari  Sarkar, Manick  Seel,  Gope  Nath  Sarkar  and Sudhanshu Bimal  Dey, mentioned  the fact that they had come to know  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 bighas of land, by arranging police pickets. 590      Thereafter, the  said applicants  filed an  application before the  learned Sub-Divisional  Magistrate  (Executive), Howrah, under  s. 145(S)  of the  Code of Criminal Procedure with a  prayer  to  recall  the  ex  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   order  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 April 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 did not make a deeper  probe into  the history  of the litigation and the fact that  if the  respondents were  in possession  even  as trespassers and  proceedings under  s. 145  were pending and 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 was of 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 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

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    sold to the respondent No. 2, then 38 families who have      been residing  therein would  be  evicted  with  police      help. In 591      our opinion,  the Court should do social justice and in      doing such  justice any  technicality of  law will  not      stand in  its way.  Social justice  requires  that  the      disputed land  should be  sold to  the petitioners  and      others residing  on the  disputed land.  Moreover,  the      petitioners have  offered  to  pay  the  price  of  Rs.      5,00,000, that  is to  say Rs.  1,00,000 more  than the      offer of the respondent No. 2."      At this  stage, it may be necessary to notice the terms and conditions  under which  the owners  agreed to  sell the properties to the appellant, which may be extracted thus:           "We further  understand that a meeting held by you      it has been decided that an offer should be accompanied      by a  Bank Draft  on State  Bank of  India of an amount      equivalent to 25% of the offer.           We hereby  make an offer for purchase of the above      property for Rs. 4,00,000 (Rupees four lacs) subject to      the Vendors’  making out  a good  and marketable 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 by one or more sale deeds in      favour of our client or his nominee or nominees.           We hereby  enclose a  draft of State Bank of India      for Rs.  1,00,000 drawn  in your  favour as  desired by      you.           After hearing from you that our 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  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  with pending litigation; the exact sentence may be extracted thus:           "My clients have no objection with regard to the 592      acceptance 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 (L P. Agarwalla  & Co.)  was not  accepted unconditionally  but with certain  reservations which  on a  close  scrutiny  ran counter to  the stipulation  mentioned in  the offer  of the purchaser. For  instance, while  the purchaser insisted that 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  if  the purchasers were  prepared to  buy the  land with the pending

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litigation.      Thereafter, the  matter having  been placed  before the court, the  receiver informed  L.P. Agarwala  & Co. that the offer of  the purchasers was accepted and the balance of Rs. 3 lakhs  had to  be  paid  at  an  early  date.  The  Latter informing L.P. Agarwala & Co. was written by the receiver on 13.1.83. In  the  context  of  the  circumstances  mentioned above, the  term ’at  an early  date’ had  to  be  construed literally so  as 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 receiver 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 no  title on  the purchasers.  It seems to us that the  purchasers   were  more   concerned  with   taking  the possession and  evicting the  trespassers because  they knew full well 593 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 arrayed  as parties  to the  suit  by putting  forward   their  case   that  since  they  were  in possession of  the properties and had also constructed their own structures,  they could not be evicted summarily 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  bar to  the  receiver  in accepting a  higher offer  because the appellant’s offer had not yet  been translated  into action or become operative 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 pending litigation.      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  accepted  because  the  purchasers having 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 became irrevocable.      In these circumstances the Division Bench directed that Rs. 1.25,000  should be paid by the present respondents 1 to 4 on  or before  1st 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

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Court and  a stay  was obtained.  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 that in case respondents  1 to  4 committed  default in  paying  the purchase price  within the  stipulated time,  the said order would stand vacated 594 and the  order of  the  Learned  Single  Judge  would  stand confirmed, i.e.,  the sale  would be  made in  favour of the appellant.      Coming back  to  the  facts,  the  respondents  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 the co- owners. The  investigation of that point on evidence did not take place  though there  are passing  observations  in  the decision of  the learned  Single Judge  that Smt. Malati Das and Jitendra  Kumar Das  had no  title or interest to create any licence  in their  favour and  that one  of them further denied having  given any such licence. It has to 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 proceedings and  supported the  appellant. In  fact, in  the affidavit filed  on behalf  of the Receiver it has been made clear that they leave the matter to this 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 in  a number of cases.      In the  case of  Everest Coal Company (P) 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.  this   Court  reiterated  the  court’s  obligation  to exercise discretion  to make  out  a  fair  sale  out  of  a bargain.      In  Tarinlkamal   Pandit  &   Ors.  v.   Prafull  Kumar Chatterjee (dead)  by Lrs  this Court reiterated (at p. 353) that the  receiver was appointed under order 40 Rule 1 and a property could  be sold  by the receiver on the direction of the Court even by private negotiations. 595      If, in  these circumstances  the court  directs that on payment of  a higher  sum of  money for  the benefit  of the owner, and  without any  breach 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.  S. Ray,  appearing for the appellant, submitted that the  entire question was a legal issue and there was no warrant for  the learned  Judges of  the High  Court to have imported the  doctrine of  social justice.  In our  opinion, there appears to be some misapprehension about what actually social justice  is. 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 deal is made with one party  without serious  detriment to the other, then the Court would  lean in  favour of  the weaker  section of  the society, Social  justice is  the recognition of greater good

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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.  It  is  in response to  the felt  necessities of  time and situation in order to  do greater  good to a larger number even though it might detract from some technical rule in favour of a party. Living accommodation is a human problem for vast millions in our country.  The owners,  in this case, are getting legally Rs. 1 lakh more.      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 beings and as human needs and if these can be fulfilled without  deprivation of  existing legal  rights of any party  concerned, courts  must lean  towards 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 Art.  136 of  the Constitution  to interfere with that decision. We  would do well to remember that justice-social, economic and  political-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 596 been adopted  by the  court. Unfortunately, the Single Judge completely ignored  the following important facts which have been indicated by me earlier:-      (1) 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 matter      was in the High Court, and      (2) 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  purchaser 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 marketable title free from litigation.      Thus, there was a clear-cut contradiction on this point which does  not appear  to have  been noticed  by the Single Judge and  perhaps not  even by the owners because they were concerned more  in getting  the money  as early as possible. The Division  Bench, therefore,  accepted the  offer of  the respondents and passed the following order:           "In the  circumstances, we  vacate  the  said  two      orders of  the learned Judge dated May 24, 1983 and May      26, 1983  and set  aside the  impugned order dated July      18, 1983 and direct as follows;           1.  The  petitioners  shall  pay  sum  of  Rs.  1,      25,000/-to the official Receiver on or before August 1,      1983 and  thereafter pay the balance sum of Rs. 3,75000      by August 29, 1983 to the official Receiver.           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      following nominees  who have  been residing in the said      premises.."      At page  90 in ’The Dictionary of Essential Quotations’

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com- 597 piled by  Kevin Goldstein-Jackson,  John Stuart  Mill  aptly observes thus:           "...the sole  end for which mankind are warranted,      individually or  collectively, in  interfering with the      liberty of  action of  any of  their number,  is  self-      protection. That  the only  purpose for which power can      be rightfully  exercised over any member of a civilised      community, against  his will,  is to  prevent  harm  to      others. His  own good, either physical or moral, is not      a sufficient warrant."      Striking, therefore,  a just balance between the claims put forward  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:      (1) that  the respondents  were prepared  to  pay  much      higher 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 consideration, 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      respondents 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      property  notwithstanding   the  litigation   obviously      because if  they had  become the  owners, no  one could      have challenged their title or possession.      In such  a situation,  therefore, in  our opinion,  the Division Bench  of  the  High  Court  has  done  substantial justice throwing  aboard the technicalities particularly for the reason that courts frown over a champartus litigation or agreement even  though the  same may  be valid. Thus, by its decision the Division Bench got more money for the owners on the one  hand and on the other sought to rehabilitate the 38 families of  the respondent  who had already built permanent structures. 598      For the  reasons given  above,  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 eiver they shall pay him the  balance of  Rs. 3.75  lakhs by  August 15, 1984 and shall also  insert a  condition that they would be being the properties notwithstanding  the pending  litigation, failing which the  appeal shall  stand allowed  and the order of the Single Judge  stand restored.  In the  circumstances of  the case, we make no order as to costs.      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  1 to  4 for  the issue  of an  interim order pending consideration  of the appeal filed against the order of a learned Single Judge of that High Court dated 18.7.1983 dismissing  their   application  for   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

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5.1983 and  for  staying  and  setting  aside  that  Court’s earlier orders dated 24.5.1983 and 26.5.1983.      Suit No.  2024 of  1952 was  filed in the Calcutta High Court on 28 5 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  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 including  the  disputed  property  and  he  took possession  of  the  disputed  property  on  13  8.1953.  An application was made in August 1982 for sale of the disputed property and  distribution of  the sale proceeds amongst the parties entitled  thereto. On  11.10.1982 C. K. Banerjee, J, passed an order in that application for sale of the disputed property in these terms:           "In that view of the matter there will be an order      for sale  in terms  of prayer  (a). In  the  event  the      properties are 599      sold by  private treaty the official Receiver will call      a meeting  of the  parties 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 purchasers 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 sale      proceeds subject to adjustment against his share in the      estate. The rest of the sale proceeds would be invested      by the official Receiver in short term fixed deposit in      a nationalised bank for a period not exceeding one year      and to  be renewed  from year  to  year  until  further      orders of 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  for  the property to  the Receiver  by his  advocate’s  letter  dated 20.12.1982 enclosing  a draft  for 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 free from encumbrances 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. 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 Kumar  Das and  others. That  meeting  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. In that meeting  all the  three offers received by the Official Receiver  were   placed  before   the  parties   for   their consideration and  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. The official  Receiver  thereupon  accepted  the  offer  of  the appellant and  communicated the  acceptance  by  his  letter dated 13.1.1983  and requested  the appellant to deposit the balance of Rs. 3,00,000 at an early date, In view of Court’s order dated 1.8.1983 another meeting was convened before the official Receiver on 9.8.1983 and the parties to suit agreed

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in that  meeting  to  sell  the  disputed  property  to  the appellant for  Rs 4,00,000  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 8.8.1983 Subsequently on the application of the official 600 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 on 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  1  to  4 namely, 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 in the application of the official Receiver affirmed by one  Ashok Kumar  Rai on  20.5.1983 and  for staying  and setting aside  the said orders dated 24.5.1983 and 26.5 1983 as stated  above. In  that application  respondents 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 residing 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 the suit against them.      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  under  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 601 the  draft   agreement  for  sale  it  is  stated  there  is litigation for  the  last  20  years  between  the  official Receiver on  the one hand and Kamal Hosiery on the other and that Second  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 in that counter- affidavit that  in the proceedings taken by respondents 1 to 4 under  s. 145  of the  Code of  Criminal Procedure  in the Court of  the Sub-Divisional  Executive  Magistrate,  Sadar,

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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 Three points were urged before that learned Judge.      The first  point urged before the learned Judge was the alleged deliberate  omission of the parries to Suit No. 2024 of 1952  to implead  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 1 to 4 in these terms:           "I 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  obtained 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  appointed  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 granted by either Malati Das or      Jitendra Kumar Das when the 602      Official  Receiver   was  in  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   and/or   any   other      proceeding in connection therewith."      The second  point urged before the learned Single Judge was as  regards the  validity of  the orders dated 24.5.1983 and  26.5.1983  made  for  delivery  of  possession  of  the property to  the  official  Receiver  with  police  aid  and without notice  to respondents  1 to  4.  It  was  contended before the  learned Single  Judge on behalf of respondents 1 to 4 that those orders made behind the back of respondents 1 to 4  who would  be affected  thereby are invalid in law and should, therefore,  be set  aside The learned Judge rejected that contention in these terms:           "In any event the decision reported in A.I.R. 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 fortified in its view by      the decision  in Hira  Lal Patni  v. Mookaram  Sethiya,      reported in  A.I.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      Raceiver’s   possession.    In   my    view   different

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    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  in  the course of the      administration of  the estate through the agency of the      Receiver  and  the  said  orders  were  passed  at  the      instances of  the Receiver  in the circumstances stated      in the  affidavit affirmed  by Ashoke  Roy on 4th July,      1953 It is apparent from paragraph 5 (vii) 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 went  unheeded requiring  an application  to be      made for  seeking direction upon the police authorities      to remove  the squatters  and thereby assistance sought      in the administration 603      of the  estate by  the Receiver.  The case  reported in      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 thus  obtained cannot  be said to have      been obtained  improperly  or  by  suppression  of  any      fact."      The third  point urged  by respondent 1 to 4 before the learned Single  Judge was that they were prepared to offer a sum of  Rs. 1,00,000  more than  the amount  offered by  the appellant and that the property should be ordered to be sold to them.  The learned  Single Judge rejected that contention in these terms:           "The third  point ...  has no  merit  and  is  not      required to  be considered inasmuch as the Court by its      order  dated  11th  October,  1982  directed  that  the      official Receiver  will sell  the  property  by  public      auction or  private treaty  to the  highest offerer  or      offers 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  12.1.1983  that  in  the      presence of parties each one of them supported the sale      to M/s  L. P.  Aggarwal’s  client,  namely,  Sadhu  Ram      Bansal and  as such  the official Receiver accepted the      offer of  the said  Sadhu Ram Bansal, after the parties      considered the  price offered  to be adequate. The case      reported in  A.I.R. 1970  SC 2037  is an  authority  in      support of the proposition that once a Court comes to a      conclusion  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 confirmed as      the official  Receiver was  invested with the direction      given on  11th October, 1982 the said decision with the      approval of  the parties cannot now be re-opened and/or      reagitated."      For  the   above  reasons   the  learned  Single  Judge dismissed the  petition of  respondents 1  to 4  with costs. Against that order respondents 1 to 4 filed an appeal before the Division  Bench. In  that 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 leading to  the application filled by respondents 1 to 4 for

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being 604 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 orders  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  the petitioners  would deposit in Court a sum      of Rs. 1,25,000 being the 25 per cent of the sale price      within a  week and  pay the balance sum of Rs. 3,75,000      within a month thereafter.           The application has been vehemently opposed by the      respondent No.  2. the  purchaser. Mr.  A.  C.  Bhabra,      learned Counsel  appearing for  respondent 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      completed their  is no question of any offer being made      by the petitioners for the sale of the disputed land to      them.  Moreover,  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      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 of  such licence. If the disputed land is sold      to respondent  No. 2  then 38  families who  have  been      resi- 605      ding thereon  would be evicted with police help. In 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.  Moreover,  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."      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

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other descriptive  particulars and have observed that in the event of  default in  payment of  the sum of Rs. 5,00,000 as aforesaid their  order will  stand vacated  and the  learned Single Judge’s order dated 18.7.1983 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  respondents  1  to  4  and  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 balance of Rs 3,75,000  by 29.8.1983  towards the  sale  price  of  Rs. 5,00,000 offered  by respondents 1 to 4 mainly on the ground of social justice and incidentally having regard to the fact that sale  has not  yet been  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 fail to deposit the  sum of Rs. 1,25,000 by 1.8.1983 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 respondents 1  to 4  not taking advantage of the opportunity given to  them in the name of social justice to purchase the disputed property for 606 Rs. 5,00,000  by 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 1  to 4  against the order of the learned Single Judge dated  18.7.1983 declining  to add  them as parties to Suit No  2024 of 1952 as well as in the application moved by the 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 only an  interim order  pending disposal  of the main appeal filed against  the order  of the  learned Single Judge dated 18.7.1983. I also fail to see what remains to be done by the learned 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.  That 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  the application  made before  the learned Single Judge and  the sale  of the  property in their favour and in favour of their nominees for Rs. 5,00,000 subject to payment of that  amount in two instalments within the time mentioned above, a  relief which  was not  even prayed  for by them in their  application  before  the  learned  Single  Judge  but granted even  before they  had been  impleaded as parties in the suit  or  in  the  application  filed  by  the  official Receiver in  May 1983.  which  prayer  was  refused  by  the

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learned Single  Judge and  has not  been granted even by the learned Judges  of the Division Bench in their order made in the application  filed only  for interim  relief. This  must strike any one as an extraordinary feature in this case, and I therefore  think it  must be  noticed before proceeding to consider the  merits  of  the  case  in  the  light  of  the arguments advanced by Mr. S.S. Ray, Senior Counsel appearing for the  appellant  and  Mr.  G.L.  Sanghi,  Senior  Counsel appearing for  respondents 1  to 4  in the  appeal.  Another extraordinary feature  in this  case is  that in the name of social justice  the learned  Judges of the Division Bench of the High  Court have conferred the benefit of purchasing the disputed  property   on  rank   trespassers,  not   ordinary trespassers in respect of 607 property in the possession of some private individual who is not vigilant  about his rights but trespassers in respect of property which  is in  custodia legis through a Receiver who was vigilant  enough to  move the Court for a direction that the police  to remove respondents 1 to 4 from their unlawful possession  of   the  disputed   property  and  put  him  in possession thereof  after his  own letters to the police for help in  that behalf did not evoke the necessary response. I will now proceed to consider how respondents 1 to 4 are rank trespassers in  respect of the disputed property which is in custodia legis  and are  contemners who  are  liable  to  be committed for  contempt and  not persons on whom any benefit could be conferred by any Court of law.      Mr. Ray  submitted rightly  that respondents 1 to 4 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 granted any  such licence to respondents 1 to 4. There is no documentary evidence about the alleged grant of the licence. If at  all, it could only have been oral. Respondents 1 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  Receiver  to  the appellant by  private treaty.  It is  impossible that such a valuable  property   has  been  allowed  to  be  enjoyed  by respondent 1  to 4  for no  benefit or  consideration to the owners by  any of  the owners of the property. Respondents 1 to 4 had no consistent case about when the alleged leave was granted. In  the 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  1968 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 "right" claimed by respondents 1 to 4 has  not been  gone into  or determined  and that they are entitled to  the equitable  relief granted  to them  by  the learned Judges  of the  Division Bench on the basis of their admitted possession  of the  property. The  contention  that their 608 position has not been determined by the learned Single Judge

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is not correct.      In paragraph  801 and  808 at  pages  403  and  407  of Halsbury’s Laws  of England,  Fourth Edition,  Volume 39  we find the following passage:           "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 of  the court  deriving his  authority from the      court’s order.  If he  is appointed out of court, he is      an agent and has such powers, duties and liabilities as      are defined by the instrument or statute under which he      is appointed  and derive from the general law of agency      ....A receiver appointed by the court is in no sense an      agent or  trustee for  the party  at whose instance the      appointment is  made. He  is an  officer of  the  court      appointed for  the benefit  of all  the parties  to the      action, and  their  rights  among  themselves  are  not      affected."      In Kerr  on Receivers,  Fifteenth Edition,  we find the 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  the  party  in      contempt to  pay the  costs and  expenses occasioned by      his  improper  conduct,  and  also  the  costs  of  the      application to commit."      This Court  has observed  in Everest  Coal Company  (P) Ltd. v. State of Bihar & Others thus:           "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  obstruction   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 609      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 any time after the  Receiver had  been appointed  and possession  had been taken in August 1953. Even if there was such a grant of licence it  is invalid  in law.  Even if  possession of  the property had been obtained by respondents 1 to 4 pursuant to any such  grant of licence it would, in law, be only that of trespassers.  Therefore,   even  on  the  admitted  case  of respondents 1  to 4 that their possession started in 1975 as licencees, in  the light  of 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 trespassers in

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respect of  the property  which is  in custodia legis. Their possession and  conduct have to be frowned upon by the Court and not  treated as grounds for conferring a benefit on them to purchase the property albeit for a 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  Division Bench  have   treated  this   illegal  act  of  trespass  of respondents 1  to 4  on the  property which  is in  custodia legis as  the ground  for conferring  the benefit on them in the name  of social  justice, and it 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 law could  be committed. In these circumstances, I am of the opinion that  no relief could be granted to respondents 1 to 4 who are trespassers in respect of the property in custodia legis on  the basis  of their wrongful possession which is a continuing act of contempt of the Court.      Mr.  Sanghi  invited  this  Court’s  attention  to  the Calcutta High 610 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 by  a 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 to the offer made in that letter the appellant had to pay  the balance  of Rs.  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  payment at  an  early  date  by  his  letter  dated 13.1.1983 by  which he  had communicated the approval of the parties granted  on 12.1.1983  for the  sale of the disputed property to  the appellant  for Rs.  4,00,000 and  submitted that the  appellant has  hot complied with the spirit of the order for  the sale  of 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 12.1.1983 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  encumbrances.  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

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that he  should pay the balance of Rs. 3,00,000 at any early date. The parties had accepted the appellant’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  8.8.1983 to  the Receiver. Mr.  Sanghi submits that there was a counter-offer by reason  of the  statement  made  on  behalf  of  the  two plaintiffs Prabir  Kumar Das  and Pradeep  Kumar Das  in the meeting convened 611 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 there  should have  been  a  fresh  acceptance  by  the appellant thereafter,  and he  has not done so and therefore there is no concluded contract. There is no such conditional acceptance as the condition required by Prabir Kumar Das and Pradeep Kumar Das has not been specially communicated to the appellant by  the  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. 1,00,000 by  accepting that offer, the order for sale of the property made by the learned Judges of the Division Bench in favour of  the respondents  1 to  4 and  their  34  nominees should be confirmed.      Respondents 1  to 4  are trespassers  in respect of the property which  is in custoda legis and they are in contempt of the  Court. They  cannot be  allowed to continue to be in contempt and  urge it  as a ground for obtaining the benefit of the  sale  of  the  property  in  their  favour.  If  the appellant has  not complied  with any  condition it may be a ground for  the owners  and the  Official  Receiver  not  to accept his  offer and refuse to sell the property to him and not for respondents 1 to 4 to raise any objection. The offer has been  accepted rightly  or wrongly  more than  once  and therefore the appellant may have a right 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 to the 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.  Jibon  Krishna  Mukherjee  v.  New Bheerbhum Coal  Co. Ltd.  & Anr.  it has  been held that the sale held  by the  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 1 to have the sale held in execution 612 proceedings  set   aside  on   the  two  conditions  therein mentioned being satisfied, namely, as regards the deposit of poundage, balance of decree amount due etc. In that case, as in the  present case, the Receiver was given liberty to sell the property  by private  treaty or  by public  auction.  In Tarinikamal Pandit  & Others v. Prafulla Kumar Chatterjee we find the following observation :           "The procedure  envisaged for  sale generally  and      sale of an immovable property under Order 21 is sale by      public auction.  Sale by  a Court  through the Receiver      appointed by  Court is  not  contemplated  under  these

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    provisions.....A Receiver  is appointed  under Order 40      Rule 1  and a  property can  be sold by the Receiver on      the  direction   of   the   Court   even   by   private      negotiation."      In the  present case the property has been agreed to be sold by private treaty and as required by the order made for the purpose the approval of the parties has been obtained by the Official  Receiver who  has been  authorised 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 confirm such sale. The  parties who  are sui juris must be deemed to have known their  interest best  when they  chose to  approve the sale of  the property  for Rs.  4,00,000 in  favour  of  the appellant not with standing the fact that respondents 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,  or to  hold  that subsequent 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.  I am  unable  to  persuade 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 613 their order  made in  the application  of respondents 1 to 4 for a mere interim order pending consideration 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 unnecessary 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  law to stand and cannot be allowed in law to stand. I would, therefore, allow the appeal and set aside the order of learned  Judges of the Division Bench and restore that of the  learned   Single  Judge   dated  18.7.1983  with  costs quantified at Rs. 3,000 and payable by respondents 1 to 4.      SABYASACHI MUKHARJI,  J, With  respect I agree with the order proposed  by Brother  Fazal Ali.  In view, however, of the  question   posed  in   this  case,   I  would  like  to recapitulate the  facts as  I view  these and  to state  the principles upon  which I  would like  to rest my concurrence with the  order proposed. Though the controversy arises in a 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 decree  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 in respect, inter alia,

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of the  disputed premises  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 to  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 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 :-           "We make  an  offer  for  purchase  of  the  above      property for Rs. 4,00,000 (Rupees four lacs) subject to      the Vendors’  making out  a good  and marketable  title      free from encumbrances."      A Bank draft for Rs. 1,00,000 in favour of the Official Receiver was  also sent  along with it. At a meeting held on Jan. 12,  1983, the  said offer  along with two other offers were  considered   by  the   representatives  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, representing his  client observed  that it might be accepted subject to  the appellant’s  agreeing "to  purchase the same land  with   pending  litigation  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      Rs. 4,00,000 for the purchase of the above premises has      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  respect of  the said  land. The  offer of the appellant which  had been  originally communicated  did  not contain any condition that the offer to purchase was 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 is a view which is  possible to  take, and  as such the Division Bench proceeded on the basis that there was no concluded 615 bargain between the appellant and the parties represented by the  receiver.   It  may,  however,  be  mentioned  that  in

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February,  1983,   it  is  stated,  certain  documents  were forwarded to  the appellant’s  advocate. It may be mentioned that in  the letter  referred to hereinbefore dated December 20, 1982, the appellant had also stipulated that the sale be completed within six months or such further extended time as may be  agreed upon  in one or more lots by one or more sale deeds in favour of the appellant or his nominee or nominees. 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 this matter by this Court. It is also significant to bear  in mind that though the application for sale of the property in  question was  made because  the parties were in urgent need  of money,  there does  not  appear  to  be  any document or letter asking the appellant for the money.      It is alleged that in February, 1983, fire broke out in the factory  adjacent to  the premises  in question and 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 March 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. 1  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 special 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 families with the leave and licence of one of the co-owners  were residing  in the  premises  in  question since 1975 and had constructed 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)    directing    the Superintendent  of  Police  to  restore  possession  of  the premises in dispute by arranging police help. The applicants had 616 filed  an  application  before  the  learned  Sub-Divisional Magistrate  under  Section  145  of  the  Code  of  Criminal Procedure  with  a  prayer  to  recall  the  ex-parte  order mentioned hereinbefore  and to  call for  a report  from the local police  regarding possession of the said applicants in the said  disputed premises.  The Sub-Divisional Magistrate, it was  alleged, did  not pass  any 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  revision 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.

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    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  premises   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 possession and their right to  be in  possession should be determined and as such they should  be added  as defendants  to the  suit and  as a consequence, the  order for  police help granted by the High Court in  ejecting the  applicants should  be recalled.  The said application  came up  to be  heard by  a learned Single Judge of  the High Court and by an order passed and judgment delivered,  the   learned  Judge  rejected  the  application holding  that   the  respondents  nos.  1  to  4  being  the applicants therein  were trespassers  and had no right to be in possession  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 property came  under the custody of the Official Receiver as receiver appointed  in 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. 617      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  respondents 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  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 of  such licence. If the disputed land is sold      to the  respondent No. 2 then 38 families who have been      residing therein  would be evicted with police help. In      our opinion,  the Court should do social justice and in      doing such  justice any  technicality of  law will  not      stand in  its way.  Social Justice  requires  that  the      disputed land  should be  sold to  the petitioners  and      others residing  on the  disputed land.  Moreover,  the      petitioners have  offered  to  pay  the  price  of  Rs.      5,00,000 that  is to  say Rs.  1,00,000 more  than  the      offer of the respondent No. 2."      The Division Bench directed that Rs. 1,25,000 should be paid by  present respondents  1 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  appeal was  granted by  this Court  and a stay had

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been obtained.  It may  be mentioned that the balance of the consideration of Rs. 3 lacs offered by the present appellant has been paid only after the special 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 that in case the respondents 1 to  4 committed default in paying a sum of Rs. 1,25,000 or 3,75,000 within  the stipulated  time, the  said order would stand vacated and the order of 618 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  appellant 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.      On the  question whether in the facts and circumstances that have  happened, the  Court could  pass the order it had done, some  contentions  were  urged  whether  the  sale  in question was a court sale or a private 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. In the view I have taken it  is not  necessary in this case to decide whether a confirmation of sale by the court in the circumstances under which the  property was directed to be sold was necessary or not, though it may be sufficient to note that there was some divergence of  opinion on  this point.  On the nature of the possession by  the receiver  and how  interference with such possession should  be dealt with by law have 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-15th  Edition page 155 and also Kerr On Receivers-16th  Edition pages  121 and  122. It  is well- settled that  when the  property is  in  the  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 no party can acquire any title or right  by coming  in or over the 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 been obtained by the respondents nos. 1  to 4, possession, if any, of the said respondents or entry into  the land  by the said respondents at a time when 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 appropriate  court,   without  any   adjudication   of   the respondents nos. 619 1 to  4’s right  to be in possession and directing that they be physically ejected by police help without hearing them or without notice  to them  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 case  that the Division Bench took the

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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.  Assuming even that though not legally but as a  reality of  fact, the  respondents nos 1 to 4 were and are in  possession of  the dispute  premises, they  want  to purchase the  premises by  paying more  than the  offer then made, the  offer 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.e. about 120 cottahs  of land.  It has  been suggested  in one of the affidavit on  behalf of  respondents nos  1 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 possible view. This view should not be  interfered within  appeal under  article 136  of the Constitution; and  (2) the fact is that the respondents 1 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. Illegitimacy of entry does not debar them from offering a higher price in purchasing a property, contract for sale in respect of which has not  yet been  concluded, and  (3) the  property  is  in custodia 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 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 any  proper adjudication  of the right of  the respondents nos. 1 to 4 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 proper terms to purchase 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 the bona fide purchaser at  a court  sale. As  I see  the facts, the basis upon which this question is posed namely, that the appellant is a  bona fide  purchaser of the property is not correct in the light of the view taken by the Division Bench. There had not been,  any concluded  contract of sale when the Division Bench passed the order.

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    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 one of the aspirations of our Constitution. But  the courts,  we must remember are pledged to administer  justice as by law established. In formulating the concept  of justice,  however, the  inarticulate  factor that large  number of  human beings  should not be dislodged from their  possession if  it is otherwise possible to do so cannot but  be a  factor 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  their  stay  by illegal entry,  they want to be rehabilitated at competitive bargain price. Should they be denied that opportunity on the ground of  their 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  law in  this case,  no law  is breached in the view taken 621 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 preeminence. (See The Fourteenth Amendment Centennial Volume  Edited by  Bernard Schwartz.  page 10). I therefore 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.      It is  true that  original entry was illegal and we are sometimes urged  "to do  a great  right, do  a little wrong" (See the  plea of  Bassanio in  Merchant of Venice). In this case, however, the court has done no legal wrong at all. The court has  only ignored  the non-compliance  of not  seeking court’s leave for the alleged grant of licence.      In administering  justice, or  social legal, we do well to bear in mind the words of Justice Holmes "The life of the law has  not been  logic: it  has been  experience. The felt necessities of  the time,  the prevalent moral and political theories,   intuitions   of   public   policy,   avowed   or unconscious, even  the prejudices  which judges  share  with their fellow-men,  have had  a good deal more to do than the syllogism in  determining the  rules by  which men should be governed  The   law  embodies   the  story   of  a  nation’s development through  many centuries,  and it cannot be dealt with as if it contained only the axioms and corollaries of a book of  mathematics. In  order to  know what it is, we must know what  it has been, and what it tends to become. We must alternately  consult   history  and   existing  theories  of legislation. But  the  most  difficult  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

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Common Law  by Oliver  Wendell Holmes-Edited by Mark DeWolfe 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 of people  without  deprivation  of  any  accrued  right  of anybody would  be justice according to law. Before we reject social justice  as something  alien  to  legal  justice,  we should remember  that a meaningful definition of the rule of law must be based on the realities of contemporary societies and the  realities of the contemporary societies are-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’.      In that  view of  the matter,  I hold  that there is no merit in  this appeal.  I agree  with the  order proposed by Brother Fazal Ali and the reasons given by him. N.V.K.                                     Appeal dismissed 623