Holding

The Supreme Court held that the Division Bench's order to sell the property to the respondents on the basis of social justice was improper and set aside that order, restoring the earlier order favoring the appellant.

Summary

The dispute concerned the sale of a six‑bigha property in Duffers Lane, Howrah, which had been under the custody of an Official Receiver appointed in a 1952 suit. The appellant, Sadhu Ram Bansal, offered Rs 4 lakhs, paid Rs 1 lakh and was accepted by the Receiver, but failed to pay the balance promptly. Respondents 1‑4, who had been in possession since 1975 under a claimed licence and housed 38 families, offered a higher price of Rs 5 lakhs. The Calcutta High Court Single Judge upheld the appellant’s offer, while the Division Bench reversed, directing sale to the respondents on the ground of "social justice". The Supreme Court held that the Division Bench erred in overturning the earlier order, emphasizing that possession by trespassers could not be a basis for sale, that the pending criminal proceeding under CrPC s.145 did not affect title, and that social‑justice considerations could not override established legal principles. The appeal was allowed, the Division Bench order set aside, and the Single Judge’s order restored.

Issues considered

The existence of a concluded contract of sale between the appellant and the Official Receiver.
Whether the court can direct sale of the property to respondents who were in possession as trespassers, invoking social justice.
The effect of pending proceedings under CrPC Section 145 on the title to the property.
The scope of the Supreme Court's power under Article 136 to interfere with a High Court Division Bench decision.
The applicability of the receiver's custody of property under Order 40 Rule 1, CPC, to prevent interference.

Legislation cited

Code of Civil Procedure, 1908s. Order 21 Rule 89, s. Order 40 Rule 1
Code of Criminal Procedure, 1973s. Section 145
Constitution of Indias. Article 136

Subjects

social justicereceiverproperty saletrespasscivil procedurecriminal procedurecontract of salepublic policy

Judgment

!582

SADHURAM BANSAL

v.
PULIN BEHARI SARKAR & ORS.
1 '
B , April 26, 1984

[FA2(AL ALI, A. VAR~DARMAN AND SABYASACHI MUKHARll, JJ.j
'
'Code of Civil Procedure 1908, Order XL

c Receiver ·appointed by Cofirt-Property in custody of receiver-Inter-
ference. with possession, not to be encouraged-No party can acquire title or
right over property in possession of receiver.
•.
Code of Criminal Procedure 1973, Section 145

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

"
AdministrGtion of Justice.-Socia! Justice-Courts . no long~r merely Pro-
tector of ltgal rights-Technicalities of law dnd procedure not to be in~istecf'
upon--Subst_antial ju1tice to be meted out to parties~Necessity of.

E In a suit filed in the High C(lurt for a declaration and relief in respect
·or several properties, the OffiCial Receiver of the High Court was appointedc
Receiver. On tbe request of the parties, the Official Receiver, c!ecided to•
sell one of the properties with the permission of the <;curt. 1he price of
the property was fixed at Rs. 3.S lakhs. The appellant o.ffered .a sum of"
·Rs. 4 lakhs· for purchase of the property,. and by hi; advocate's letter"
enclosed a. draft for.Rs. l h!kh, being 1/4 of the amount. A-mee.ting \vas..
F held in the presence of the plaintiff and their counsel, an.d at the meeting
the_ offer received from the appellant was consideied and· it was decided that
the offer of Rs. 4 lakh by bank: draft .. The Official Rc&eiver accepted the·
offer of the .appellant, ·communicated the· accep.tance ~nd ~uested the·
appellant to deposit the balance amount.

The Official Receiver, thereafter- moved the High Court for directions.-.
·to rem'ov,e re~pondents 1 to 4 on. the ground' that they had trespassed i.nt°'""
'
the property a few months earlier. Respbodents l to 4"moved an 3ppli'"
cation for being impleaded in the suit and· contend,!d that .they were·
residing with their fdmilies under a licence since 1975 and had coastructedi
pllcca-,huts thereon and. that with the knowledge of this continuous ·posses-
H sion, the parties _to .the suit -have filed the suit among themselves without.·
impleadiog them (respondents 1 to 4). • •
• Si\DHURAM V. )'. ll· SARKAR

• The Single .Judge..,rejected the aforesaid contentions ofresPc;indent.s
1 to 4 ·and held that though they wer·e prepared to offer the sum of Rs. l
· iakh more thin the appellant the property could not be sold to them. •
The Division Bench, however allo\\•ctJ their appeal, directed. respon ..
dents I to 4 to pay to the Official Receiver a sum of Rs. 1.25 lakhs
immedia,_ttY and tho balance of Rs. 3.75 lakhs theTeafter and on such
payme-nt ordered sale of the disputed proPerfy. to respondents .1 to 4 and

• their 34 nominee~ oo the ground that the Court should do s.ocial just_ice
and in doing such justice no te;hnicality of law would stand in its way.
'
Dismissing the Appeal to this Court,

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

In administering justice-social or legal-jurisprudence h_as shifted
a~ay from finespi.ln technicaUties and abstract rUJes t.o· recognition of
bu man beings as human beings. The Division Bench of the High Court
ti ~ h:ld adopted ihe above apJ)roach, and no law is brca·ched ~y the view t'aken
by i~. -It is improper for this Court in exercise uf tbe discretion vested
under Art. 136 of the Constitufion to interfere with that dechion.
[595-_FG; 622A·B]
[Pet Fazal Ali, J.]

J~ In our opinion, there appears· to be some misapprehen&ion about
what actually social justice ts. There is no ritualistic formµla or any
magical charm in the cOncept of social justice. All that it meanS is that
as b~t\veen _two parties if a deal is m:!dc witb one party without serious
·detriment to the otherJ then the Court W0uld lean in favour of the weaker
section of the society. Social justice is the recogniticn of greater good to
larger num'ier without d~privation of acc1ued legal rights of anybody. If
such a thing can be done· then indeed social· _justic~·rr.u;t prevail over any
"tcchnic:"il rule. It iS: in response to·the felt necessities of tim~." f'nd ·situation
in order to do greater good to a larger numbe·r CV(D though it might
detract frpm some technical- rule in f,1vour of a party. Living accomrnO ..
dation is a hum2n Problen1 fOr vast millions i"r our country". [5958-D]
•
2. Call it social justice or solving a socio-economic problem or give.
it any other' name ·or noinenclnture, the 'tr.ct qf the matter is that this was.
the best course in the circumstances that could have been adOp~ed by the
court.

·3, Justice-social~ economic end politica.1-is Preamble to our
Constitution. Adriiinistration of justice can no .longer be merely protector
'
of legal rights but must whenever possible be dispenser of socia1 justke.
. . l595H-596A]

- 4. Tbe Division Bench of the High Court has d-0ne substantial
ju Stice by throwing aboard. the technicalities particularly for the reason
th;_t cour1S fro~n over a champartous liti&ation or agreement even though
.t.he c;ame ~ay be valid. The Division -Bench by its decision got mQrc

•
fl
, I
•

S84 SUPREME COURT REPORT~ [1984] 3 $.C.R.
•

<A money for the owners on the one hand and one the other sought to r'eha· ·
bilitate the 38 families of the rcsporident who had already - built· perma-
.nent ·sauctures. [l97G-H]
•
Jn the instant case, the Division BenCh \v3s perfe.ctly .justified in •
accepting the offer of the respondents because : (a) the respondents were
pteparcd to pay Rs. l lakh n1ore than the cppellant and the appellant did
not pay the balance of Rs. 3 lakhs, (b) possession being 9/IOth of litle, . r
"the respondents being in actull poss~ssion would hJve no difficulty in
becoming the owners, (c) tcspoad~nts were . prepared to purchase the
property notwithstanding lhigation, bec?use if they became owners no one
could cha-Henge their title or poss:s'iion. The Single Judge completely
ignored two ma'teria,l, aspects : (a)· 1hiit a bulk or the consid~rat1on money.
viz. RS. 3 lakhs · out or Rs: 4 lakhc; was Oot pa.id by the <ppellant, and (b)
that an owner also bas right t~ in1pose certain conditions, and· in exercise
of·that, the condition that th~ purchaser would have to buy the land subject
to the pending litigation was imposed. [597C-F; 5"6A·D]

CI:er Varadarajan, J. dissentir.g)

D 't. The Dlvision B~nch had no fight or juHiticatioa to alter or
modify the earlier order n1ade for the sale of the property which had
become final,. or to hold th::it a sub;equ!nt off~r m ide by respondents \
to 4 to purchase the p:-operty ror Rs._ 5 lakhs shou Id be a·ccepted mer~ly
becau~e it appears to b! a 1yant1geaus to the owners of the property in th.:
name of social justice. [6 l 2F] ·

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

3. Respondents 1 to 4 arc trespassers in respect of the properly
which· ls in custodi:z legi·· and they are in contempt of the Court. Th~y
cannot be: allowed to con·inue to be in contempt and urge it as a/gr0und
for obtain'ing the btn~fit of tile sale- of the p.ropJrty in their fovour. I( the
appellant has not com;>! ieJ with any condition· it m1y be gn~und for the
owners and the Official" Ilec~iver no't to :iccep t .his offer and refu'>e to sell
0

the proper1y to ~im and not for respondents 1 to 4 to raise any objection.
The offer has been accepted rightly or wro~gly niore than once and there.
, fore the appellant.may have a right to sue for ~pecific p~rforril1nce of the
contract on the basis of that acceptance by the ofii::ial Receiver given with
the approval of the parries The same iS the position -in regard to the
delay of about a month in paying the balance of Rs. 3 lakhs by the '
appellant. [6 llD-F]

In lhe instant cac;e, the woperty has bee11 agreed to be so 1 d bjr Private
treaty and the Official Receiver has been authorised to sell the propertY
ei~her by public auction Or hy private treaty. , The Court does not come
into the picture in such a case and· there is no need for the Court to -apiJr"ove
•
SADHURAM V. P. B. SARKAR 585

oC,?r confirm such sale; The parties who are sui juris must be dec.:ined to A
bav e knov.-n their interest best when 'they chose to approve the sale of. the
property for Rs. 4 lakhs in favour of the appellant notwithstanding the
·-fact that re~pondents l to 4 had offered to purchase· the proJ'erty for
:Rs. S !akhs. The appeal has therefore to be allowed. [6 l 2E; 61 JB]

Evere;t Coal. Company d>) Ltd v. State of Bihar & Others, [1974]
I SCR P. 571 at P. 513, Kayjay Industries (p) Lti. v. Asneiv Drums (P) B
.. Ltd. & Othm, [1974] 3 SCR P. 678, Jibon Krishna Mukhe.fee. v. New
.Bheerbhum Coal Co. Ltd. & Anr., [!960] 2 SCR P. 198, Tarinikamal Pandit
·.a Others.v. Pra[ull" Kumar ChatierjOI!, [1979] 3 SCR P. 340, referred to.

<(Per Sabyasachi M"kharji, J.l

·. J. ·The pcndency of the procceedings under Section 145 of the Code c
-cf Criminal Procedure and o·der, if any, pa~·ed thereon does not in ·any
way affect the ti:tle.of the parties to ·the disputed premises though it rt:fl.ects
4he Lc!um or possession.[616D]

Bhinka and Others v. Cirarcn Sirgh, [1959] Suppl. 2 S.C.R. P. 798
ireferreO to, .-
D
2. When the pi-opcrty is in custody of a receiver appointed by the
.court; the property is in the custody of the court and interference with such
.possession ~hould not be encouraged and no p:i.rty' ~1n acquire any title or
right by coming in or ovet'the property whi-ch is iil the possess.ion of the
&:ecei ver or sanction of t.he court [t» I SF]
E
Ilalsbury's Laws of England, 4rh Edn., Vol, 39 pages 451, 452 para ..
"'graph1 890, 89.1: Kerr On Recei~ers-16th Edn. p:iges 121 referred-to .
•
3,· The concept of social justice is not foreign to legal juStice or
-.social \Veli-being or benefit to the community rooted in the c~accpt of
justice i_n the 20th. century: The ch1Jlcnge of social justice is prirnariiy a
'.challenge .to th~ society at large more than· to the court immediJtely. F
.Social justici:Js one of the aspirations o"f our CoJstitution. But 1 h-:! c~urts,
.are pledged to. administer justice as by law established. [620F]

In ,1he instant cat.e, in formu13ting the c~ncept of justice, however,
~he inartku 1ate factor thit l~rge number of human be'iJlgs should not be
dislodged frorn their 1)ossessio1 if it is otherwise possible to do so cannot
·~tu: be a factor which mun and should infl.u !nee the mi~ds of judg.!s. It G
· ·is true thJ.t {he persons who were alleged to be in possession are with
~ua~lean, haRds, bu[ they can1e for shelter and built in hutineutg. They do
n6t want to be rehabilitated at competitive birgain .piice. In the circum-
'1itances they-ih.ould oot be denied rehabilitation on the ground of their
.originil .ilkgitimacy. l620G-H]

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

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

people v.'ithout deprivation. of <1riy· .accrued right of anybody would b~
justice according. to 1aw. Before social justice as something alien to legal·
justice, is rejected, it. shcu'd be remembered, th.at a meaningful ·definition of
the rule of law must be based on the re'} Ji ties of contemporary so.:ieti-e.s-
and the realities of the cOntemporary ·societies are-men are in acute
shortage of living accommcdation-and if they are prepared to' bargain..
and rehabilitate tbemselv~s on competitive teyms, they should be. encouraged
.JI and no technical rules sbou1d stand in their way. That would be justice·.
f .
'by highways' and not infiltration 'by t?e·lanes'. [6i!H-622B]

CIVIL APPELLATE JURISDICTION Civil Appeal No. 5887 qf
. 1983 .

.c Appeai· by Special leave from th~ Judgment and Order d~ted
the 25.7.1983 of the Calcutta High Court in Appeal No. 271 of
1983.

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

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

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

The Judgment of the Court was delivered by

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

As a result of internecine disput> between 1he heirs, an Offi-
cial Receiver had to be appointed to look after the property and the
G I .
final end of the drama seems to have begun .when the Receiver,
on the request of the .parties, decided to sell the property with the
permission 6f the court by a pr;vate treaty least the litigation might
draw the last drop of the blood of the property rights of theuheirs.
Meanwhile, some more events followed which made the task of the
Receiver botb complex and complicated as the respondents put up
their claim to.possession of the property e.ither as trespassers or as.
license.es from some. of the hefrs. ·

•-
SADllURAM v. P. B. SARKAR (Fazal Ali, J.) 587 ·,

Thus, while ihe negoti.ations for the private treaty were going
on a new ·upshot in the guise of the re~pondents' claim seems to
nip in the bud the attempt of the owners to get the property back.
During the course of the three decades, lot of changes took place in
Howrah-the population rose by leaps and bounds, $. number of
build.ings came up and perhaps it )Jecame next to impossible for ·the
' lr
heirs to occupy the premises again. To add to this, came ilp a new
lltigation in the shape of proceedings under s. 145 of the Code of
C~iminal Procedure between the parties.

The heirs having given up all hopes of getting vacan~-posses·
sion became "sadder and wiser" to sell the property if they could
get a handsome amount for the same. A bargain was, therefore, c
struck, with th.e approval of the Receiver, by which )he entire pro- ·
perty was agreed to be sold to the appellant fot a sum of Rs. 4
lakhs, u~der which he paid Rs. I lakh and promi>ed to pay the
remaining amount of Rs. 3 lakhs at an early date. The appellant
also expressed his willingness to ·take the. property under sale sub- •
ject to the pending litigation.

The matter, bowevor, did not end here because the trespassers
jumped into the fray in order to stop or render the sale nugatory.
When the matter came up before the court, it, on being satisfied
that the sale was from all points of view in the intrest of the heirs,
affirmed the said sale. The appellant contended th•t the possessions
of t]je premises by the respondents did not pose any problem
because they being rank tespa>Sers could be evicted summarily by
tli~ Receiver under the provisfons of the Civil Procedure Code.
But, we think that the matter was not so simple as that because
once possession of the premises by the respondents had la•ted fOr F
a year or more and proceedings under s. 145 of'the Criminal I'roce-
dure Code bad already started, the Jaw bad 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 pai;ty who
. was in possession two months next before the initiation of the procee-.
dings under s.145 or of the party who was found to be in poss;ssion G
of the property at tne relevant tilne.

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

"145. Proeedure where dispute concerning land or H
water 1s likely to cause breach of peace.
SUPREME COURT REPORTS [1984] 3 S-C.R.

(4) . The Magistrate shall then, without reference to the
merits ·Or the claims of any· of the claims of any of the
parties to a right to possess the subject of the dispute, peruse.
the statements so put in, here the parties, receive all such
evidence as may be procfuced by them, take such furthe(
evidence, if any, as he thinks necessary, and, if possible,.
decide whether any and which of the.parties was, at the
date of the order made by him under sub-section (I), in
possession of the subject of dispute :
•
·' Provided that if it· appears to the Magistrate that any
party has been forcibly and wrongfully dispossessed within
two months next before the date· on which the report of a
poHce officer or other information was recei.ved by the
Magistrate, or after that rlate and before the date of his
order under sub-section (I), he may treai the party so dis·
possessed as if that party had been in possession on the
• .1> date of his order under sub-section (!J,

(6) If the Magistrate decides th~t one of the parties
was, or should under the proviso to. sub-section (4) be
treated as being, in such possession of the said subject, he
shall issue an order declaring such party to be entitled to
possession thereof until evicted therefrom in due course. of
law, and forbidd1ng all disturbance.of such possession unfl
such evi~tion; and when he proceeds under the proviso to
sub-section (4), may restore to posse1sion the party forcibly
and wrongfully dispossessed."

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

The story of the case begin's with the execution Of a Will and
testament by one Jitendra Kuniar Das on May 22,.1952 in favour
of sonie .of l1is near· relations, in respect of pre,nises No. 7, Duffers
Lane, Liluah, Howrall as also some premises in. No. 211, Old China
Ba~ar Street, Calcutta. The suit was instituted for a . declaratfon
that the aforcsa'd Will was void and . invalid, hence the legatees
under the Will. had no right, title or interest. The suit went on
ding·dong frC>nl one stage to another until 1973 when, according to,
the ri:spondent~, two of the uwners, viz., .Smt. Malati Das and
SADHURAM v. P. B. SARKAR (Fazal Ali, J.) 58!1-

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

.It is alleged that.in February 1983, nre broke out in the factory :a.·
adj1cent to the premises in question and .fire·brigado men entered ,
' lr into the premises by .breaking a portion of the v.all to get access to
the pond. It is t'h! case of the appellant tbat on March 14, 1983,
respond,ent Nos. 1 to 4 ... alongwJth some miscreants forcibly entered
into the land. This, however, ·is disputed and j,. the root of contro·
versy in this case. It.appears that the present ~ppellant, v.ho had
not yet b.ecome a purchaser, informed the Official Receiver that
certain persons had entered into the premises in question. On this
the Official Receiver informed the parties. On 13th May, 1983 the
Offi«ial Receiver authorised the appellant 'to take steps for prote~
tion of the pr0perty. lt is difficult to appreciate !low before a con·
eluded co;J.tract and a conveyance in fa1 our of the appellant, the
Offici1I Rec·,iver could have authorised the present appellant to take
steps for removal of respondents treating them unilaterally as tres-
passors. Ordoi was ·obtained on May 24, 19S3 from a learned
Single Judge of the· High Court directing the police to remove the , I

unauthorised occupants. On June 22, 1983 respondent Nos. I to
4 made an· application for being added as parties to the said pending,
suit for recalling the order for police help to eject them from the
premises in dispute;

In the said application four of the' respondents, viz., Pulin
Behari Sarkar, Manick Seel; Gope Nath Sarkar and Sudhanshu
Bimal Dey, mentioned the fact that they had come to know ab'outthe .~·

appointment of the Official. Receiver from the police and they had
further come to know abont the offer made by the appellant for the
purchase of the ·pJemises in dispute. The said applicants (being ·
·~ respondents herein) alleged thaf they .alongwith their families, with,
the leave~and licence of one of the co-.owners, were residing in
the premises since 1975 and had constructed pncca huts and in spite
of the same, the appellant did not inform th.e Court of the.said fact
•
before obta.ining police help against them. I.t is further alleged
. that on May 2, 191!3 they had come the know th~t the appellant had
obtainedex parte .order from the learned Sub-Divisional Magistrate
(Executive) directing the Superintendent of Police to restore posses·
sion of the disp}lted · premises, comprising ~bout six bighas of land,
by' arranging police pickets. ' ·
590 SUPREME COURT REPORTS [1984) 3 S.C R.

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

· The learned Single Judge of the High Court did not make a
cD deeper probe into the history. of the litigation and the fact that if
the respondents were in possession even as trespassers and procee.·
dings under s. 145 were pending aild had not been quashed, they
could not have been summarily ejected. The learned Judge further
noted that the tesponcfent~ .h~d offered to pay R.s. 1 .lakh more for
purchase of the premises in dispute· but the learned Judge was· of
the view tha1·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 conc\Uded .contract of sale in favour of the appellant and
hence the.re was no completed sale yet. The Division Bench further
noted thus:

"On the other hand, we find .that 38 families have been
residing fo the disputed land. \tis submitted by Mr. Bhabra
that these persons are all trespassers without any vestige of
title. It is, however, the case of the .petitioners that they
have been residing in the disputed land by making certain
structures under the. leave and licence of two of the owners
of the said premises although one of the owners, Smt.
Malati Das, . who is alleged to 'have granted the iicence, has
denied granting land of such'licence. If the disputed land is
, di
sold to the respondent No. 2, then 38 families who have·
.
been residing therein would .
be evicted with police help. In
.
•
SADHURAM V. p, B. SARKAR (Fazal Ali, J:Y 591
• -0ur opinion, the Court should do social justice .and in doing A
such justice ai,y t~chnicality of law will not stand in its way.
Social justice require.s that the disputed land should be sold
to the petitioners and others residing on the disputed land.
Moreover, the petitioners have offered to pay the price of
Rs. 5,00,0CO, that is to say· Rs. 1,00,COO more than the offer
of the respond,nt No. 2." · B

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

"We further undentand that a meeting held by you it c
has been i:\ecided that an cffer should be accompanied by a:.
Dank Draft on State Bank of India of ah amount equivalent
to 25% of the offer.

We hereby make an offer for purchase of the above
D
property for Rsc 4,CO,CCO (Rupees fcur lacs) subject to the
Vendors' making out a good and marketable little free from
'encumbrances on behalf of ou_r client Sri Sad!zuram Bansal
of No. 23A, Netaj1 Subha·s Road, Calcutta-700 001. The sale
will be completed within six months or such further
· extended time as may be ag.reed up,)n in one o~ more lots E
by one or more. sale deeds in favour of our client or his
nominee or nominees .

• We hereby enclose a diaft of State Bank of India for
Rs. l ,00,000 drawn in your favour as desired by you.
F
After hearing from you that om client's offer had been
.'\ accepted, we shall forward to you the agreement for sale
for your approval."

This offer was made by the appellant on December 20, 1982
:and at a meeting convened by the receiver thp owners while generally G
cagreeing with the terms of the said offer, imposed some conditions.
For instance, Mr. Mitra. counsel for. some of the .Objectors while
indicating his clients' view emphasised that the acceptance of the
-o!fer would be subject to the' buyers agreeing to purchase the land
with pending litigation; the exact~entence may. be extracted thus:
.u
~'My clients have no objection with regard to· the

•
592 SUPREME COURT REPORTS (1984] 3 S.C.R
A accepten¢e oftlte said offer or'M/s. L.P. Agarwalla & Co ••
subject to Jhejr clients Mreeing to purchase the same land
with pending litigation in respect of the said p~operty."

Similarly, )he counsel for the other owners also accepted the.
offer of the purchaser. After having accepted the offer, it was decidect .
B to circulate a draft agreement for sak for finalising· approval of the-
owners.
f
Before proceeding to another important stqge in the -case, it
may be mentioned that from w(lat has been extracted above, foe
.offer of the appellant through their mtorney (LP. Agarwalla & Co.)
c was· not accepted unconditionally but with ccrt•in reservations
which on a close scrutiny ran counter to the stipulation mentioned
in the o(fer of the purchaser. For instance, while the p~rchaser
insisted . that he would buy th> properties subject to the vendor's
making out a good and marketable title free from encumbrances but
D this does not appear to have found favour with one of the owners
.b<cause the clients of Mr. Mitra had dearly_ indicated that the offer
would be accepted only if the purchasers were prep1red to buy the
land with the pending litigation.

· Thereafter, the matter having been placed before the court,
E the receiver informed L.P. Agarwala & Co. that the offer· or the
purchasers was accepted and the balance of Rs. 3 lakhs had to be
paid at mi early date. Thdetter informing L.P. Agarwala & Co. was.
written by the receive,r on 13.1.83. In the context of the circum-
stanees mentioned above, the term 'at an early date' had to b~
construed literally so as to mean 'expeditiously and. without any
F reasonable delay'. It cannot be interpreted to give a long rope t~
the purchaser-to deposit the balance of the amount whenever he
liked .. It would hwe been better if the receiver could have· fixed ·a
particular date by which the balitnce amount .was to be deposited,
failing w!)ich the contract would .stand cancelled. Even so, as a
corollary of the cgrresporrdence beiween the parties, this condition
G. must be read into the letter of the receiver. However, the balance Of.
.Rs. 3 !akhs was never paid until the matter came up to this Court.
In between, the purch1Sers approached the receiver to evict the
· trespassers summarily ~ven though by t~~t time the contract had not
passed. into the domam of an exee,uted contract but was only a '
·execiltory contract and conferred no.title on the purchasers. It seems
to us that the purchasers were more concerned with taking the
posse,ssipn and evi_cting thetrespassers because they knew full well
SADHURAM "· P. B. SARKAR (Fazal Ali, J.) 593

that in view of the proceedings under;. 145, it would have been. A
difficu1t for them to get the possession and therefore reserved the
balance amount of R,s: 3 lakhs until they got the possession.

·They, ho)Vever, rose up from their deep slumber o~ly when,
· they realised that the respondents had made an application for being
B
array~d as parties to the suit by putting forward their case that since.
they \)'ere in possession ofthe,,roperties and had also constructed .·
their own structures; they co11ld .not be evicted summarily because
the matter was sub judice. ·
~

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

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

In these circumstances the Division Bench directed that
Rs. !,25,000 sho~ld be paid by the present respondents 1 to 4 on or
before !st August 1983, which it may be noted has been paid; and G
thereafter pay the balance sum ofRs. 3,75,000 by 29th August 1983,
! · which could not be paid because in the' meantime .special leave to
appeal was granted by this Court and a stay was obtained. The
Division Bench flirther directed that in case payments were made
within the time, the property in question should be conveyed to the
persons named in the said Order. It was. furthe~ directed that- in H
case respondents 1 to 4 committed default in paying the purchase
pric~ Within the stipulated ti111e, the S!>id order 11c.11ld stand· \aeat(d
59.4 SUPRH!Ji COURT REPORTS (1984] 3 S.C.R.

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

Corning .back tci the facts, the respondents' claimed before. the
learnetl trial Judge for mvestigation of their right to be in possession
of the disputed premises by virtue of the leave or licence granted by
B
OI)e or two of' the co-owners. The·. investigation of that point on
evidence did not take place though there are passing observations· in. f '
the decision of the learned Single 1!idge that Smt. Malati Da&and
Jitendr&.Kumar .Das bad no title or interest to create any licence in
their favour. and that one of them further denied hiiving given any
c such licence. It has te be borne in mind that there has· been no
in.vestigation of the respondents' right to be in the premises; even a.
trespasser cannot .be· thrown "out of his occupation or posse.ssion,
except by due process of law. The. owners.appeared in these pro-
ceedings and supported. the appellant. In fact, In the affidavit filed
- on behalf of the Receiver it has been made clear that theY leave the
D matter to this H on'ble Court.
•
The appellant's rights which have not yet crystallised would
not be hampered. court's dominipn civer:the property is still tliere.
The Official. Receiver is after all an agent of the .Court. as has ·been
held by this Court in a number of cases.
E ' ' ' .. '

In the case of Ev~rest Coal Company (P) Ltd. v. State of. Bihar ..k
& Ors.('), this Court reiterated that when a court placed a Receiver ·
in possession of property, the ·property came under the custody of
the court, .th.e Receiver being merely an officer or agent of the court.
F
In Kayjay Industries (P) Lid. v. Asnew Drums (P) Ltd. & Ors.c'
this Court reiterated the court's obligation to exercise discretion to
'make out a fair sale out of a bargain.
; ,,... .
In Tari~ikamal Pandrt & Ors. v. Prafull Kumar Chatterjee
G (dead) by Lrs (') th1~ Court reiterated (at p. '.153) that the receiver
was appointed under Order 40 Rule I and a property could be, sold .
by the receiver on the directiqn of the Court ev.en by private negotia-
tions. ·'

H (!) (1978] 1 S.C.R . .511. "' . I
(2) (1974) 3.S.C.R. 678.
(3).(1979)) S.C.R. 340..
•
SADHURAM v. P. Jl. SARKAR (Faza/ Ali, J.) 59~
{_ ~ ·~

if' in these circumstance~ ihc court directs that on payme.n.t
' ' ' . of.-
a '1riglier .sum of money for· the benefit of the owner, and w1thi:mt
any br~ach· of any tegal right cif the intending purchaser, the property:·
can be conveyed .to persons in occupation with large number. ~r.
families, the Court acts properly and with social wellbeing in mind.
B
':Mr. S, S. ·Ray, appearing for the appi1Iant, submitted .that
. ' • . the entite question was a legal 'issue and there was no warrant for
the le'irnea Judges'ofthe Higt C~\irtto r cvi,-imported the eloctri~e
. of secial justice. fo ·our opinion, there· app:ea:ts"to· be som~ mis-
apprehension about )Vhat actually .social justi\:e. is .• Th,efe Ml ~o
ritualistic formula or any magical charm, i.n the concept of social c.\_~·
justice. All thatit means is.that as beiween two part;es if 3" deal
is made with orie party without serious de\riment.to the other, then
the Court would.lean infav<)ur of the weaker sec,tion of the society,
Social justice is the recognition of greater good to larger number
without d~privation ofaccrued legal rights of anybody. ·1r' such a
thing can be dorie then indeed social justice musfjirev~il ov~r any
· technical rule. It is in respom1e to the felt necessities of time and
situalion · in. order to do greater good to a larger : number· even
thciugh it might deiract frbm some technical rule in· favour of··
a party. Living ac~ommodation is a human proJ?lem ·for vast millions :
in-Our.country. The owners, in this case, are getting legally Rs~ 1.·:
lai,hmore. E

We must remember that in administering justice-sopial pr legal·
jurisprudence has shifted away from ;llnespuri technicalities and
abstract rules to recognition of human·being as bU:inan beiiljlS, and as
human. needs and if th~se can be .fulfilled without ..deprivation Of J
existing lega!'rights of any party concerned, courts must .lean to·
wards that and if the Division Bench . Gf the. H;gb Court, in the .,
facts atid circumstances of the case, has leaned towards that, it is
'-·~· improper ·for this Court in exercise of the. discretion :vested. under
Aft. f.36 of the Constitution fo interfere with that decision;' -.w~
would do. well to remember that justice~soCial, economic ·and p9li· G.
, tical~is preamble to our Constitution. Administration of justice can
no longer be merely. protector of legal rights but must whenever
possibl1;.be dispenser of·social justice.
. . - . .

'Call it s9cial justice or solving a socio.economic problem or
give it any other name or nonienclature, ihe fact of t])e matter is H
• ''t'.

that this was the best course in the circumstances that could hav~ '"
.. . .
I

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

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

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

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

Thus, there was a clear.cut contradiction on this point wJiich
·doe1 not appear to have been notice<! by the Single Jlidge and per. ·
~Jll not oven by the owners because they were concerned more in
getting the l\loney a1 early. as Possible. The Division Bench, there-
for., acGepted the offer of the respondents and passed the followina
E 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; •
11.
t. The petitioners shall pay sum of Rs. I, 25, 000/-to
the Offidial Receiver on or before August I, 1983 and \here·
after 'PBY the balance sum of Rs. 3,75000 by August 29, 1983
to the Official Receiver, ·
G
•
2. If the aforesaid s_µms are paid within tlie dates
· mentioned above, the Official Receiver shall sell the land of
.' .

the disputed premises No. 7, Puffers Lane, Lilluah, Howrah ·
to the petitioners and· to their following nominees who have'
been residing in the said premises .... "
H
· At page .90 in 'The Dictionary of Essential Quotations' com-
SAbllURAM v. P. B. SARKAR (Fazal Ali, J.) $91 ,
piled. by Kev.in: Goldstein-Jackson, John St0art Mill aptly observes A
thus: ·•
•
" .. :the sole end for which mankind are. warranted,
individually 01 collectively, in interfering with the liberty of
action of any of their number, is self-protection. That the.
only purpose for which power can be rightfully exercised
.... ·over any member of a civilised community, against his will,
is to prevent harm to others. His .own good, either physical
a
or moral, is not sufficient warrant." ·

. Striking; therefore, a just balance betwe,eil the claims put for-
ward by the appellant and the respondents, we are convinced tliat c
the Division Bench of the High Court was. perfectly justified in
.
accepting the offer of the respondents for the fo!lowing reasons:
.
(I) that the respond~nts were prepared to pay much liigher
amount than the appellant (i.e., Rs. 1 Lakh more) even at
D
the very behest; the appellant did not pay the balance of
. Rs. ~ lakhs, which was a· substantial part of the considera-
. tion, at the earliest moment as stipulated in the· .agreement
but depo~ited the amount only when the case came up
before this Court,

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

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

• In such a situation, therefore, in our opinion, the Division G
Bench of the Hi?h .~ourt has done . substan.tial justice throwing
aboard the techmca1It1es particularly for the reason that courts
frown over a c~mpl!rtus litigation or agreement ev~n 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 H
already built permanent structures.
SUPRBMB COURT REPORT~ (!984) 3 S.C.R. ).-- ·

we
For the: reasons .given al;wve,' ·find onrselves in complete
agreement with the judgment of the Divisioµ Bmch of the High
Court which we hereby affirm with the observations that since the
ctates mentio.ned .·in the Division Bench's Order have· already passed,·
we m·odify the said Order to ·this extent that as the respondents
.; •. . · have already paid a sum of Rs. 1.25 lakh. to the Official Re eiver
they shall pay him the balance of Rs. 3.75 lakhs by August. 15,
1984. and shall also insert a ·condition that they would be b ying . "/ •
the properties riotWithstandirtg·the pending litigation, failing wh'ch
the appeal shall stand allowed and the Order oflhe Single Judge
stand restored; In the circumstance$ of the case, we make no· order
., c ·!Is \o costs .

V ARADARMAN,' J. This appeal by special leave · is direCted
against the order of a Division. Bench of the Calcutta High Court
dated 25.7.1983 made in an application of respondents l to 4 ·for
the .issue . of an interim order pending consideration of the appeal
filed against the order. of a learned Single Judge of that High Court
''- D dated 18.7.1983 dismissing their application for beir.g impleaded
as defendants in SuitNo ..2024 of 1952 .ori the file of that High
Court as also in the applicat•on of the Official Receiver, Calcutta
High Cowt afi\.t·m<'td by oue Ashok Kurnar Rai on 20.5.1983 and
for staying· and setting aside that. ·court's earlier orders dated
24.5.1983 and 26.5.1983.

Suit No. 2024. of 1952 was filed in. the Calcutta High Court on
28;5.!952 by '()Ile l'.ras.ad Nath Das, husband' of Malati Das and
father of the then minors l'rabir Kumar Das and l'radeep Kumar
D~s. for declaration and other reliefs in respect of certain properties
"' F including.No. 7, Duffer:s Lane, Howrah, hereinafter referred to ·as
the 'disputed property' against certain i>ersons including oue Jitendra
:&:umar Das who is the second defendant in- that Suit. The ·Official
_Receiwr of the High .Court was appointed as Receiver in that suit
on tl.8.1953in res~ect of ceriain properties includiQg the disputed r-·
property and he . took possession of the disputed propeUy on
;: ·13.8.19_53. An application was made in August 1982 for.sale ot .the
::..: disputed property and-.di_stribution of the sale proceeds amongst the_
:·_ pa,rties ent!tled-thereto. . ()n l J. I0.1982 C. K. Banerjee, l. pas~~<l
.; ; ari.. order i,n that application for sale of the disputed prop~rty Ill
:c .theseterm8::
·r;:II~, ''ln that view of the matter .there will b'e an ~rder for
sale ·in t.enns of prayer (a). In the event the properties are

..
' . .
---..j.
SADHORAM v. p, il. SARKAR (Varadrajan,,.J.) 599
sold by private treaty . the Official -,Receiver will call a A
meeting of the parties and obtain l,l;l.eir approval to such sale
by private treaty. The proviSional. allottees or any other
party to the suit would be entitled to bring intending pur-
··cJ:iasers for the said property. There will.also be an order in
terms of prayer (b). In)he event the properties are sold the
petitioner Ajit Kumar Das would be.paida sum of Rs; 10000 B.
out of the sale .proceeds subject to adjustment against
his share in the estate. The rest of the sale proceeds would
be invested by. the Official Receiver in short term fixed
deposit in a nationalised bank for a period not exceeding
one. year and to be renewed from year to year until further
orders of Co"urt." c

It has to be s.tated that the le.acned Single Judge fixed an upset
price of Rs. 3;50,000 for the disputed. property in that order. and
there is no dispute about ;t. . The· appellant Sadhu Ram Bansal
· offered a sum of Rs. 4,00,000 for.the property to the Receiver by D
his advocate's letter dated 20.U.19S2. enclosing a .draft "i'or
Rs. 1,00,000 being one fourth of the amount and saying that f11e offer
is subject to the· vendors making ·out a good· ai:td- marketable title fre~
from encumberances and that the sale will be completed within 6 •
months or &uch other time as may be agreed upon in favour of the
appellant °ilr his nominees. Thereinafter, a meeting \'(as. held before,· E
the Official Receiver on 12.1.1983 in· presence of· Prabir Kumar
·Das and Pradeep Kumar Das a.nd their Counsel as als6 }iiendra
Kumar Das and others. That meeting was convened in. terms Ol a
motion of a meeting dated 23. 12. I98i for deciding upon the steps
·to be ta~en re.garding the intending offers for _the sale of the dis-
puted property. . In that meeting.all the three offers r_eceived by the F
.Official Receiver were placed before the parties for their considera-
tion and it was det;ided that the offer of Rs .. 4,00,000 made on
behalf of the appellant should be accepted in view of the payment-
-of Rs. 1,00,00.0 by ban~ draft. The· Official Receiver thereupon
' '
of
accepted the offer the appellant and communicated the acceptance
by hiS letter dated 13.1.198! and requested the appellant to deposit G
the .balance of Rs. 3,00,000 at an early· date, In view· of Court's
. order dated 1.8.1983 another meeting was conve~ed before the
Official Receiver on 9.8:198) and the parties to sui.t agreed· in that
meeting"to sell the disputed property to the appellant for Rs. 4,00,000
inview of his prior · payment of Rs. 1,00.000 by bank draft
and sei:tdfog the balance of Rs. 3,00,000 to ihe Official Receiver
H
on 8.8.1983. Subsequently on the application of the Official
stiPRru.iii cotlR(ruiPORTs (!984) 3 S.C.R •
A •
Receiver,· P. Banerjee, J. of the Calcutta High Court passed an
order dated 24.5.1983 .directing the police to· remove respondents
I to 4. from th~ disputed property and put the Official Receiver in
possess10n thereof on the allegation· of the Official Receiver that they'
had trespassed .into the property a few months earlier.. That.order·
was modified orl 26.5.1983 as regards the designation of the Deputy
B InspeClor General of Police to whom also the earlier letter dated
24.5.1983 was directed. On 22.6.\983 respondents 1 to 4 nanieiy,
Putin Behari Sarkar, Manik .Seal, Gopinath Sarkar and Sudhansu f'
Bimal Dey moved the. Calcutta High Court for being imple.aded as
defendants 1n Suit No. 2024 of 1952. (wrongly mentioned in that ·
..
application as Suit No. 2024 of 1982) as well as m the application
c of the Official Receiver affirmed by one Ashok· Kumar Rai on •
20.5.1983 and for stayiqg and setting asicie the said orders dated ·
24.5.1983 and 26.5 1983 as stated above .. In. that application respon·
dents I to 4 alleged that they came to know from the police about.·
the orders dated 24.5.1983 and 26.5.1983 on 18.6.198:!, that
0 Suit No. 2024 of 1982 (mistake for Suii No. 2024 of 1952) had been
filed by Prasa,d Nat.h Das on 28.5.1982 (mistake for 28.5.1952),'
that the Official Receiver had been appointed on 11.8.1982 (mistake
for 11.8.1952),. that the Court I1as granted leave to t)le Official
Receiver to sell the. property either by public auction or by private
' tre;ity subject to a reserve price of Rs. 3,50,000 and· that the offer
E of Rs. 4,00,000 made by the appellant .has been accepted and .one·
fourth of the amou.nt has already been paid to the .Official Receiver
Respondents 1 to 4 further stated in tbat application that they are
residing on the di~puted property w.ith their families under a licence
since 1975 and have constructed pucca huts there<)n and that with
knowledge of their continuous possession of tae property as licencees
F since 1975 the pai·ties to the suit have filed t)le suit among themselves
withont impleading them (respondents 1 to 4) as parties knowing
fully well that they would not get pzs~ession of the same if they filed
the suit against them. · ·

'fhls application of respondents I to 4 was opposed by the
G appellant through a counter-affidavit o~ his son Sajan Kumar . Bansal.
0 Jt was stated in that counter-affidavit inter alia that in the application
filed for grant of leave to the Official Receiver to sell the disputed
.., property it was alleged that it was· under the unauthorised anti
illegal occupation of one Kamal Hosiery. claiming to be tenant of·
the property on a rent of Rs. lOb/·per month for a long time and
.H.
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
SA[)I!URAM V. P. B. SARKAR (Varadara}an, J.) . 60i.

the draft agreement for sale it is stated there is litigation for the" A
last 20 years between the Official R~ceiver on the one hand and
Kamal Hosiery on the other and that Secrnd Appeal No. 1267 o(
1982 filed by Kamal Hosiery against the Official Receiver was
pending in the Cakutta High Court. Denying that there was'llny
such licence as claimed by respondents l to ,;(.it was stated in that
counter-affidavit that in the p 0 ceeding~ taken by respondents 1 tg 4 B
under· s. 145 of the Code of Criminal Procedure in tlie Court of the
Sub-Divisional Executive Magistrate, Sadar,· Howrah respondents l
to.4 claimed to have been in possession of the disputed property for
the last 15 years which will· take us to 1968 and not 1975 It is·
that application of respondents 1 to 4 for being impleaded as parties
0
to Suit No. 2024 of 1952 and for staying and setting aside the High ..
Co .1rt's orders dated 24.5.1983 which came up before Monjula
!lose, J. 'Fhree points were urged before that learned Judge. .

· The first point urged before the lear~ed Judge was •the alleged
· deliberate omission . of "the. parries to Suit No. 2024 of 1952 to imp· D
!~ad respondent> l to 4 as parties with the object of getting a receiver
appoil'ted and· having the property sold behind their ·back. The
learned Judge rejected that contention of respondents I to 4 in these
terms :

"I accept the contentions of the. learned Advocate for E
the purchaser Sadhu Ram Bansal as .also the co.ntentions of
the Learned Advocate for the leam~d Official Receiver that
deliberate mis-statements hav<: been made in the petition
with. a view to impress upon the Court that the suit was filed
without impleading the petitioners (respondents I to 4) as
parties so that possession could be obtained .and an order of .. F
·appointment.of Receiver and leave to sell the property could
be obtaintd behind the back -0f the petitioners (respon-
dents I to 4). It· is significant that the proceedings were
instituted in 1952 (Suit No. 2024 of 1952) and. the Official
Receiver· was appqinted as .Receiver as fa.r back as in 1953.
G
Since that date t~e suit property is irt the possession of the
Official Receiver as offi.cer of the Court. . The petitioners ,
(respondents l to 4) claim to be in pdssession since !Q75
with the leave of one Malati Das and Jitendr11 Kumar Pas.
It is significant that the said Mala ti Das . was brought on
record only in the year 1977 after the death of her husband
and in any event no leave or lice.nee coulCI have been gran· · . JI
ted by either Malati Das or Jitendra Kumar Das wJ1en th¢
SUPREME COURT RtPORtS (1984) 3 S.C.R.

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

The second point urged before the learned Single Judge · ~as .
. as regards the validity of the orders dated 24.5.1983 and 26.5.1983 ·
··made for delivery of possession of the property to the Official Recei-
ver with police aid and witho.ut notice to respondents 1 to 4; . It
was contended before the Ie;1rned Single Judge on behalf of respon- ·
dents l to 4 that those orders made behind the back of respondents
·~ 1· to 4 \1-lf o would be affected thereby are invalid in law and should,
therefore, be set' asid"' . The learned Judgc rejected. that contenti!?n
in these te~ms : · .
.r..-
"In any event the ·decision reported ill A.I.R .. 1957·
Calcutta 252 is an authority for the proposition.that the
Court has unfettered discretion al)d ample powe1 to do
"r-· jusiice The Court is also fortified in its view by the decision
E in Hira Lal Patni v.. Mnokaram Setlziya, reported in
A.I.R. 1962 SC 21 where tlie Court viewed that under Order
40 .Rule I the Court may remove any perso~ who interferes
or intermeddles with the Receiver's po.ssession In lhy view
. different considerati.ons apply in cases where property In the
' '.' possession of Court through its officers are sought to be the
F. Receiver of the Court is sought to be interfered with, and
the cases cited are distinguishable.. To iny mind the orde.rs
passed on .the 24th and 26th May, 1983 are orders pa'ssed
by tl;le Court in the course of the administration of the
estate through the agr11cy of the Receiver and the said'
orders were passed at the instances ofthe Receiver in the
G circumstances stated in the affidavit affirmed by Ashoke Roy
on 4t!i July, 1953 It in apparent. from paragraph 5 (vii)
.that certain persons had entered _the. premises on the 14th
M"rcli, 1983. requiring the Official Receiver to· take steps . '
with the police authorities and it appears that his lette1s ·
w~nt unheeded requiring an application to be made for:
seeking ·direction JJpon t_he police auth?rities to r~inove ~he
squatters and thereby assistance sought m the admm1strat1on
SADFlURAM v. P. B. SARKAR (Varadarajiin, J.) 003
of the estate by the Receiver. The case reported in A.LR.. -~A
1962 SC 21 Hira Lal Patni v.' Moakaram Sethiya is an
authority in support of this proposition.• The order for
police help· th11s obtained cannpt be ·said to have been
obtained improperly or by suppression of any fact."

The third point urged by respondent l to 4 before the learned B
. "" 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_: ''
c
''The thircl.point .... has no merit and is not requir.id to /'

be· considered inasmuch as the Court by its order dated l l th

.. ...,,
'
October, .1982 directed that the Official Receiver will sell the
property by public auction or private treaty to the. highest
. offerer or offerers subj_ect to a reserve price or' Rs. 3,50,000
and had. directed that in the event the· property is sold bY D
private. treaty the Official Receivenvould call a meeting of:
the ·parties and obtain approval for such sale. It appears
. from the records. of the minutes of the Receivds meeting
held on 12.1.1983 that in the presence of parties each one
of them supported the sale to M/s: L. P. Aggarwal's client,
namely, Sadhu Ram.Bansal and as such the· Official Recei- E
ver accepted_ the offer of the said Sadhu Ram Bansal, after.
the parties considered the price offered to be adequate. The
.
case reported in A.LR !97() SC 2037. is an -authority in
support of the propnsition that once. a Court comes to . a
conclusion that .the price·otre~ed is adequate no subsequent
higher. offer can constitute a valid ground for .r£fusing con- F
firmation. To my niiod although the transaction in suit
does not require to be confired as the Official.Receiver was
invested with the direction given on II th October, 1982 the
s1id decision with the approval of the parties cannot now be
te-opcned and/or reagitated."
G
For tlie above reasol)~-the learmd..Single Judge dismissed. the
petitiQJ) of respondents 1 to 4 witlt costs. Against that order res:
ponde!lts I to 4 filed an appeal before the Division Bench. In that .
appeal respondents' I .to 4 .made an application for an interim order,
and it came up for considei;ation before the Division Bench consi- H
sting M. M. Dutt and C. K. Ilanerjee,.JJ. After setting out some
facts foa1ing to the application filled by respondents 1 to 4 for being
"
664 sb~REME coukT REi>oRrs [l <}84] 3 s.c.R.

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

B "At the bearing of this application Mr. Som Nath
i
Chatterjee,. learned Counsel appearing on behalf of the
petitioners has offered to purchase the disputed land at a 1 '
sum of Rs. 5,00,000.. It. has also been offered by him that
.the petitioners would deposit ih Court a sum of Rs. 1,25,000
being the '25 per. cent of the sal'e . price within a week· and '
c pay the balance slim of Rs. 3,75,000 within a month 'there-
after. •

The application has been vehemently opposed by the
· respondent No. 2, the purchaser. Mr. A. C: Bhabra, learned
D Counsel appearing for respondent Nb. 2 submits that as .
parties themselves have agreed to sell the disputed land to ·
the respondent No. 2 this Court has no jurisdiction to
override the said agreement and direct the sale of the dis-
puted land t3 the petitioners. fo our opinion this contention
is without substance: The sale has not yet been completed.' AS
stated already respondent No. 2 paid a su·m of Rs. 1,00,000
being 25 per cent of the sale price some time .in January
1983.and since then respondent No: i has not paid the
balance, .sum of the sale price. If the sale bad. been comple·
ted their is no question of any offer being made by the
petiiioners for the sale of the· disputed land to them. More- -
,.F over; the sale will be subject to the approval of the Court .
. As the sale bas not yet been completed there is no scope for
the approval ·of the sale.

On the other hand, we find that 38 families have been
residing in the disputed land. It is submitte.d by Mr. ]Jhabra
that .those persons are all trespassers without any vestige of
title. ·It is,· however, the case @f the petitioners that they
have been residing in. the disputed land by making certain
structures under - the leave and licence of two of the owners
of.the said premises although one of the owners, Smt.
Malafr D~s · who is alleged to have granted the licence, has
denied granting of such licence. If the disputed land is sold
to rosp,111dcnt No. 2 then 38 families who have been resi-
SADl!URAM v. P. B. SARKAR (Varadarajan, J.) '60S

ding thereon. would be evicted with police help. 1n our A,
opinion the Court should d_o social justice and in doing such
justiG~ no technicality of law will stand .in its .way. ·Social
justice re9uires that the disputed land should be sold to the ·•
petitioners ;ind otlier residing on the disputed land. More·
over, the petiti'oners have offered to pay a price of .
Rs. 5,00,000 tha_t is to say, Rs. 1,00,000 more than the o'ffer ·B
of the respondent No. 2. In the circumstances, we vaQate the
said two orders of the· lea.rued Judge dated 24.5.1983 an<l
26.5.1983 and set aside the impugned order dated July 18 1
·'
19e:· •
The learned Judges directed. respondents 1 to 4 fo pay to the c
Official Receiver a sum of Rs. I.25,000 on or befor"' 1.8. 1984 and
the balance ~f. Rs. 3,75,000 by 29.8.1983 'and ordered that on such
payment the Official Receiver shall sell the disputed property to
respondents 1 to 4 and their 34 nominees mentioned in the impugned
order without any other descriptive particulars·and have observed
D
that in the event of default in payment of the sum of Rs. 5,00,000
as aforesaid their order will stand vacated and the learned Single
Judge's.order dated 18.7.JgaJ shall stand confirmed.·

Thus it is seen that the learned Judges ofthe Division Bench
have set aside the impugned order ofthe learned Single Judge dated
l8.7.1983 and directed the sale of the disputed property to 'respon-
dents I to 4 and their 34 nominees subject to the . condition that
respondents 1 to 4 deposit a sum.of Rs. 1,25,000 by l.819_83'and the
· balance of Rs. 3,75,000 by 29.8;1983 towards·. the sale price of
· Rs. 5,00;000 offered by respondents 1 to 4 mainly on the ground of
social justice and incidentally having regard to the fact that sale has F,
not yet been approv_ed by the Court _without however deciding the
question whether approval of the Court to complete the sale of the
disputed property by the. Official Receiver to the appellant by private
treaty subject to the approval of the parties which has been given on
12.1.1983 and 9,8.1~83, as stated .above; is_necessary or not. They
~ ' have at the same . time observed m their impugned order that the G
order dated' 18. 7.1983 · of the learned Single Judge. will stand con,
firmed \f respondents I ·to 4 fail to deposit the SU!ll of Rs. J,25,000
oy I.8.1983 and the balance of R,s. 3,75,000 by 29.81983. The
learned Judges of the Division Bench have thus left in tact ·the order
dated 18.7.1983 of the _learn~d Sin&Ie Judge in the_ eyent of respon·
H
dents I to 4 not takipg advantage of the opportunity given to them
in the name of social Justice to purchase the disputed property for
.. 606.
- ' SUPREME COURT REPORTf (1984] 3 s.c.1t
A Rs. ·s,o0,000 by paying that amount in two instalments as aforesaid.
Hence this appeal b)' special leave.

With respect to the learned Judges of the Division,cBench of
the High Court lam at a loss to understand ho~ their order which
virtually disposes of the apPeal filed by respondents l to 4 against
B the order of the teamed Single Judge ·dated 18.7.1983' declining to
" add them as parties to Suit No; 2024 of 1952 as well as in the
application moved by the Officbl Receiver in May 1983 and to stay
and set aside the orders dated 24.5.1983 and ·26.5.1983 and direct.s
the Sale of the disputed property to respondents 1 to 4 and their 34 :.•.
nominees on payment of the. sum of Rs. 5,00,000 in two instaJments
as· mentioned abo·ve could be made in an application which has been
filed. by respondents .I .to 4. for on~ an interim prder p~nding
disposal of .the main appeal filed against· the order .of the learned
Single Judge dated 18.7.1983. I also fail to see what remains to be
· done by. the le.~rried Judges of the Division Bench in the main ·
D · appeal filed by respoudents 1 to 4 against the learned Single Judge's
order dated 18.7.1983 after the learned Judges of the Division Bench·
have· passed the order impugned in this appeal before this Court.
'Fhat appeal before the learned Jndges of the Division Benell has
now .become totatly redundant and unnecessary; for what responde,nts
1 to 4 wanted has been ordered 'in their favour vtz., ~etting aside the
orders daied 24.5~1983 and 26.5.1983 which is one of the prayers in
tfte application made before the learned Single Judge and the sale of
the property in their favonr and in favour of their nominees for
R,s. 5,00,000 subject to payment of that ramount'in two instalments .
within the time mentioned above, a relief which was not even prayed
for by them in their application before the. learned Single Judge but'
F . granted even before they. had been imp leaded as parties in .the suit·
or i.n the application filed by the Official Receiver in May 1983,
which prayer was refused by the learned Single Judge and has not
. been granted even by the learned Judges of the. Division Bench in
' their order made in the application filed only for interim relief. This.
must strike.any one as an extraordinary feature in this case, and I .
G therefore think it must· be noticed before proceeding ·to consider the
merits of the case in the light of the arguments advanced by Mr.
S.S. Ray, Senior Counsel apparring for the .appellant and Mr. G.L..
Sanghi., Senior Counsel appearing for respondents 1 to 4 in the'
appeaL Another extraordinary .feature in this case is that in.the
name of social justice the learned Judges of the Division Bench of
~ • the High Court have conferred the .benelit of purchasing the dispute!l
property on rank trespassers, not 01diilary trespassers in respect of. ·
SADHURAM v. P. lJ, SARKAR (Varadarajqn, J.) 607

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

law.
c
Mr. Ray submitted rightly that respondents 1 to4 are ra.nk
trespassers iri respect of. the disputed property which is in custodia
/egfs. The case of respondents 1 to 4 is that they .became licencees
in respect of the property in 1975 under a leave granted to them by
·Malati Das and Jitendra Kumar Das. This case has been found by D
Monjula Bose; J. to be false· having regard to.the fact that Malati
Das came on record a• a leaal representative of her husband Prasad
Nath Das only in .1977 and she appeared in Court and denied jlaving
granted any such licence to respondents 1 to 4. There is no docu-
mentary evidence about the alleged grant of the licence ... If at all, it
could only have.been oral. Respondents I to 4 have not examined E
Jitendra Kumar Das to prove th• ·alleged. grant ·of the licence.
Jitencira" Kumar rias is a party to the approval granted on 12.1.1983
and 9.8.1983 for the sale of the disputed property by the, Official
Receiver to the appeHant by private treaty. It is. impossible that
such a valuable property has been a11owed to be enjoyed by respon-
dent 1 to 4 for no benefit or consideration to the . owners by ony of r
the owners of the property.' Respondents l'tq 4 had n<;> consistent
case about when the alleged leave . was granted. In the present

.. proceedings their stand is that it was granted in 1975: But ih the
proceedings before the Sub· Divisional Executive Magistrate-, Sadar; ·
Howrah under s .. 145 Criminal Procedure Code they stated that the
licence was granted 15 years prior to the date of that petition which
will take us to 1968 as stated above. Therefore, faciually the alleged
grant of licence does not appear to be true as has been found ,by
Monjula Bose, J. Mr. Sanghi on the other hand, contends that the
"right" claimed by respondents 1 to 4 has not been gone into-or

-·
' > determined and that they are entitled to the equitable relief granted
to them by the learned Judges of the Divisio.n Bench on the basis of
their admitted posse~io!l of the propertr. The contention that.theµ-
•

y·
608 SUPREME COURT REPORTS (1984) 3 S.c.R.

A position has not been determined by the learned Single Judge is not
C9fr~t. . . . .•
In paragraph 801 and 808 at pages 403 ·and 407 of Halsbury's
Laws of England, }'ourth Edition, Volume 39 we find the· following
passage:
B /
"A rcceiveds a person appointed for the collection or
·protection of property. He is appointed either bf the court
or out of court by individuals or corporations. lf he is
appointed by the court, he is an ·officer of-the court deriving
.
c his authority from the court's order. If he is appointed out
of court, he is an agent and has such powers, duties and
liabilities as are defined by the instrument or statute under
which he i's appoin\ed and derive from the general law of
agency ...... A receiver appointed by· the. court is ip no. sense
an agent or trustee for the party at· whose instance the
D · ·appointment is. made. He is an· officer of the court appointed
for the benefit of all the parties to the action, and 'their
rights among'. themselves are. not affected."
•In Kerr on Receivers, Fifteenth Edition, we find the fo]Jo~ing
J,assage at page 155: ·
E
"A person who dist11rbs or .interferes with the posse·
ssion of a receiver is guilty of a contempt of court, and is
•'
liable to be committed. In extreme or aggravated cases, the
court will, for the purpose of vindicating. its authority, order
a committal. The court is generally tatisfied with ordering
F the party in conteµipt to pay the costs and expenses occasi·
oned by his improper conduct, and also the costs of the·
application to commit." · ·

Th1s Couft has observed in Everest Coal Company (P) Ltd.
v. State of llihar &Others (1l thus: ·
G "When a. court put9 a Receiver 'in possession of
property, the property comes unde'r court custody, the
Receiver being merely an officer or agent of the court. Any
obstrlit:tion or interference with.· the court'& possession
sounds in contempt ·of that court. Any legal action in •
respect .of that property is in a sense such an interference.
H
\I) (1978] 1 &,C.R. 511 at F~ •..
SADHURAM v. P. a· SARKAR (Varadarajan J.) 609

and invites the contempt penalty of likely in validation of
4
the. su;t or other proceedings."
It is not disputed that after the institution of Suit No. 2024 of
1952 in the Jfigh Court, the Official Receiver was appointed as
Receiver in respect of the d:sputed property on 11.8.1953 and that

- ... he took possession of the same on 13 .8.1953 and it continues to b~
in cu:;todia /egis through the Receiver since then. This has been
B

found by M:onjula Bose, J. in the order dated 18.7.1983. When-the
property isin cusiodia "tegis neither Malati Das nor Jitendra Kumar
Das, who may have rights of ownership in the property, could grant
any licence in 1975 or at any -time after the, Receiver had been
appointed and possession had been' taken in August 1953. Even 'if ·c
there was such a grant of licence it is invalid in law. Even if posse-
ssion· of the property had been obtained by respondents 1 to 4
pursuant to any such grant oflicence it would, in law, be only that
of trespassers. Therefore, even on the admitted case of respondents -
1 to 4 that their possession_ started in 1975 as !icencees, in the light
of the the unnispnted fact that the Receiver got into p_ossession of
the property as far back as in August 1953 under the orders of _the
Court, -the possession ~f respondents l to 4 could only be that of
trespassers; They are trespassers who are liable to be committed
" .
for contempt of the Court inasmuch as they are trespassers in respect
of the property which is _in custodia legis. Their_ possession and
conduct have to be frowned upon by the Court and riot treated as
grounds for conferring a benefit on them to purchase the property
a/-beit for a higher amount than the. amount for which the· Official
Receiver has 11greed to sell the property to the appellant with the
approval of the parties to the suit. The learned Judges of the Divi-
sion Bench have treated thi3 illegal acf of trespass of respon<lents F
I to 4 on the property which is in custodia ief(is as the -ground for
conferring tile benefit on them in the name of social justice, and 1t
.. is this order which Mr. Sanghi, with all his vehemence, wants this
Court to confirm. In my view 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 G
be committed. In these circumstances, I am of the opinion that
no relief could be granted to respondents I to 4 who are trespassers
in respect of the property in cuitodia /egis on the basis of their
wrongful possession which is a continuing act of contempt of the .
Court. ·
H
·Mc San~i invited thi~ Court's attention.to the Calcutta High
6IO ·SUPREME COURT REPORTS [1984] 3 s.c.R.

'..\
. •
Court's ord.er dated 11.10. 1982 for the sale of the disputed property
particularly to the portion thereof which says that Rs. I0,000 out
of the sale proceeds should be paid-to Ashok Kumar Rai subject to
adjustment against his share and that the balance should be invested
by the Official · Receiver, in fixed dep'<l'sit every time for a term not
exceeding one year. A sum of Rs. 1,00,000 was sent by a ba_nk
B draft to the official Receiver along with the offer made on behalf of i .
the appellant for purchasin°g the property for Rs. 4,00,000. Accor-
ding to the offer made in that letter the appellant had to pay the.
balance of R~. 3,00,000 within six mo'nths from 13 .1.1983. Mr.
Sanghi invited this' court's attention to the non·payment of the
c balance o.f Rs. 3,0_0,000 until it was sent to the Receiver on 8.8. 1983
in spite of the Receiver 'asking for its paymei1t at an early date by
his letter !lated 13.1~983 by which h{had communicated the appro-
val of the parties granted on 12.1.1983 for the sale of the disputed,
property to the appellant for Rs. 4,00,000 and submitted that the
appellant has hot complied with the spirit of the order for the sale
D of the·property by private treaty. Mr. Sanghi next invited this Court's
attention to the· fact that in the parties' meetmg held before the
. Receiver on 12.1.1983 to consider which of the3 offers made to the
Ol!icial Receiver could be accepted Mr. D.N .. Mitra, Advocate for
Prabir Kumar Das and Pradeep Kumar Das ha\! stated that they
have no objection to the sale subject -to· tbe appellant agreeing to
purchase the property subject_ to pending litigatio1;1. The pending
litigation referred to. by Mr. Mitra evidently refers fo· the litigation
about the property pending in Second Appeal ,No. 1267 of 1982
filed in the Calcutta High Court by Kamal Hosiery against the
Official Receiver. The appellant's learned Counsel" had earlier
offered in _his letter dated.20.12.1982 to purchase the property for ·
F. Rs. 4,00,000 subject 'to the vendors making out a good and market-
able title free from encumberan~es. The Official Receiver hits not
referred to that condifion mentioned by the ,Advocate for Prabir
Kumar Das and Pradeep Kumar Das that the acceptance of the offer
of the appellant is subject' to his agreeing to purchase·the property
G subject to the pending litigation. but he has merely stated in his letter
dated 13.1.1983 that the appellant's offer to purchase the property
for Rs. 4,00,000 has been accepted and that he should pay the
balance of Rs. 3,00,000 at any early date. The parties bad accepted
the appellant's offer even in the subsequent meeting held on 9.8.198)
after the appellant.had sent the balance of Rs. 3,00,000 on 8.8.198~
H to the Receiver. Mr. Sanghi submits that there was a counter-offer
by reason of the statement made on tehalf of the two plaintiffs
}'rabir Kul!'ar ras an<,1 Pr2deep Kumar Pas ip the meetin~ ccnvene~
SADHURAM •. P. B. SARKAR (Sabyasachi Mukhaiji, J.) 611

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

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

Respondents 1 to 4 are trespassers in respect of the property
D
which is in custodia ,/egis and they are in cori.tempt of the Court.
They cannot be allowe.d to continue to be in contempt and urge it
as a ground for obtaining the benefit of the sale of the property in
their favour, If the appellant has not complied with any condition
it may be a. ground for the owners and the Official Receiver not to
accept his offer and refuse to sell the property to him and not for E
respondents . 1 to 4 to raise any objection. The offer has been
accepted rightly or wrongly more than once and therefore the
appellant may have a right tb sue for specific• performance of the
contract on the basis of that acceptance 'by the Official Receiver
given with the approval of the parties. The ·same is the position in
·regard to the delay of about a ·montl) in paying, the balance. of F
Rs. 3;00,000 by the appellant. In Kayjay lfldu.<tries (P) Ltd v. Asnew
Drums (P) Ltd. & Other; (1l it has been held that tl:ie executing
court had committed no material irregularity in the conduct ot the
sale in accepting the highest offer and concluding tl:ie· sale at
Rs. 11,50,000 though the market value of the property may be over
Rs. 17,00,000. In Jibon Krishna Mukherjee v. New Bheerbhum Coal G
Co. Ltd. & A·nr. (1) it has been held that the sale· held ·by the
Receiver app~inted by the Court is not governed by the provisions'
· of Order 21 rule 89 of the Code of Civil Procedure which enables
t~e persons specified in sub-rule 1 to have the sale held in execution

(1) [1974] 3 SCR 678
'
(2l. [1960] 2 SClR 198
612 SUPREME COURT REPORTS (1984]3 S;C.R. y
A proceedi~gs set aside on the two ~onditions therein mention.ed being·
satisfied, namely, as regards ihe depqsit of poundage, balance of decree •
amount due etc. In !hat case, .as in the present case, the Receiver
was given liberty to sell the property· by private treaty or by. public
auction. In ·rarinikamal Pandit <h Others v. Prafulla Kumar
Chatterjee (') we find the following observation :
B
"The procedure envisaged · for, sale generally and sale
of an immovable property under Order 21 is sale by public
. auction. Sale by a Court through the Receiver appointea ·
·by Court is not contemplated under these provisions ...... A
c Receiver is appointed under Order 40 Rule l and a pro-
perty, can be sold by the Receiver on the direction of the
Court evim by private negotiation."

.Jn the .present case the property has been agreed to be sold
by ·private treaty and as required by the order made for the purpose r *
D the approval of the parties has been obtained by the Official Receiver
who has been authorised t6 sell the property either by public auc'tion
or by private .treaty. The Court does not come into the picture in
such a case and there is 'no· need for the Court to approve or con-
firm such sale.· The parties who are sui juris must be deemed to
have known their interest best when· they chose to approve the sale
E · of the property for Rs. 4,00,000 in favour of the appellant not with
standing the fact that respondents .l to 4 had offered to purchase
the property for Rs. 5,00,000 therefore, in my view the learned
Judges of the Division Bench had no right or justification to alter ·
or modify the earlier order made for the· sale of the property by
even private treaty, which ha.d become fiqal, or to hold that sub-
F sequent offer made by respondents . 1 to 4 to purchase the property
fot Rs. 500,000 should be accepted merely because it appears to be
advantageous to the owners of.. the property in the name of social
justice. I am unable to · pursuadc myself to hold that the benefit
claimed on behalf o1 respondentS 1 to 4-J would not call it a right, .,
for there is no corresponding obligation-.cali. be equated with or
even brought anywhere near the social justice mentioned in the
preamble of our Constitution.

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

(1).(i979) 3 SCR 340
SAD!lURAM v. p, B, SARK>':R (Sabyasachi Mukharji, J,) 613

their order made in the application cif respondents 1 to 4 for a mere A
interim order pmding coasid~r~tion of the appeal preferred bj them
~gains! that order of the foarned 3ingle Judge d1ted 18.7.1983 in the
manner done by them which has rendered· the nnin. appeal itself
redundant and wholly u'rnecessary as stated above. The impugned
order of the barned Judges of the Division Boncli which purports
to stand on the fragile and imagiriary prop of social justice has no B
legs .in law to stand and c11mot bi allowed in law. to >tand. I
would·, therefore; allow the appoil and set aside the order of learned
Judges of the Division Bench and restore that of the learned Single
.. Judge' dated. 18.7.1983 with costs quantified at Rs. 3,000 and pay-
·able by respondents 1 to 4. ·
c
SABYASACHI MUKHARJ!, J, With respect I agree with the order
proposed by Brother Fazal Ali. In view, however, of the question
posed in this case, I would' like to recapitulate the facts as I view
these and to state the principles upon wliich I would like to rest my
concurrence with the order proposed. Though .the controversy arises
in a long pending litigation, the question b~fore this Court lies D
. within a short compass.
Premises No. 7, Duffers Lane, Hpwrah, comprising of about
six bighas of land is nearabout Calcutta. It formed part of the .estate
of one late Radha Kanta Das, since deceased. The premises is
hereinafter called "the disputed premi>es". Suit No. 2024 of 1952
was filed in the High Court of (;1lcutta on May 29, 1952 by one E
Prasad Nath Das·c!aiining it decree for construction of the will and
. testame11t of the sai.d Radha Kanta Das since deceased· and for
d~claration that the purported will dated May 22, 1952 executed by
one Jitendra Kumar Das, since deceased in respect, inter a!ia, of the
dispute.ct premises ·was invalid, void and for other reliefs. The
Official Receiver was appointed receiver over certai.n properties F
belonging to or alleged to have belonged to that estate including the
disputed premises on or about A.ugust II,.1953. Some oftbe parties
lo the suit, namely respondents Nos. 13, 14 and 15. to this appeal
took out an application for granting leave to the Officer Receiver to
sell the disputed premises, as some of the parties required immediate
G
funds. An order was passed on October II, 1982 by a learned
Single Judge of the High Court directing the Official Receiver to sell
the disputed premises either. by a public auction or private treaty to
the higl:icst offerer subject to a reserved price of Rs. 3,50,000 and
the order further directed that "in the event the property is sold by
private treaty, the Official Receiver, High Court, Calcutta, would
H
call a meeting of the parties and obtain their ·.approval to such sale
by private treaty. The. provisional al!ottees or any other party to .

•
614 SUPREME COURT REPORTS (1984) 3 S,C.R. r
A the suit would be entitled to bring intending purchasers for the
same." On Dece.mber 20, 1982 by a letter, an ~ffor was made to the
Offiicial Receiver for purchase of ihe said premises for Rs. 4,00,000 .
. on behalf of the present appellant. The said letter contained the
following :-

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

A Bank draft for Rs. 1,00,000 in favour of th~ Oflkial Re'ceiver
c was also sent along with it. At a me,ting held on Jan. 12, 1983 the
said off<;r along with two bther offers were coasiderod by the ;epr;sen-
tativcs and advocates app~aring for the different parties in the suit .
. It appears that parties more or les3 agreed that the offer received on
behalf of the appellant was best but one Shri B.N. Mitra, represen- r •
D ting his client observed that it might be accepted subject to the
· appellant's agreeing "to purchase the- same land. with pendin,g litiga-
. tion in respect of the said property." It may be mentioned that the
terms in which the Ollicial Receiver intimated by letter dated
January 13, 1983 addressed by the Official Receiver to the advocate
of the present appellant contained the following :-
E
"This iS to inform you that your clien.t's offer of
Rs. 4,00,000 for the purchase of the above premises has
•
been accepted.

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

It would be relevant to bear .in mind.that it was not communi-
cated that the acceptance of tile offer was subject to the appellant"s
agreeing to 'purchase the land with pending litigation in. respect of
the said land. The offer of the appellant which had been originally
G communicated did not contain any condition that the offer to pu·r-
chase was sulij~ct to pending.litigation. It was, therefore, nrged .before
us that there was nq acceptance of the offer by letter dated January
·13, 1983 because the acceptance was with a condition. It was urged
that .it was really a co!lnter offer. The Division Bench of the High
Court came to the conclusion that there was no concluded contract,
H 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
SADHORAM v. P. n.. SARKAR (Sabya.siach Mukhar}i, J,.) .615
.1
ba·rgain between the appellant alrd the parties r.el?resented by the
receiver. It may, however, be mentioned that in February, 1983, it
is stated, certain documents- were forwarded to the appellant's
advocate. It may be mentioned that in the letter referred to herein-
before dated December 20, 1982, the appellant had also stipulated
that the sale be completecfwithin six months or such further exten-.
ded time as may be agreed upon in one or more lots by one or more B
sale deeds in favour of the .appellant or his nominee or nominees.
• T,lie letter dated January 13, 1983 by the Official Rccei.ver also
requested the appellant to deposit the balance su'!! at an early date.
It may be mentioned that the said balance sum was deposited after
' August, 1983 after the special leav~ was granted in this matter by 0
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 a~king the appellant for the money.
l It is alleged that in February, 1983,' fire broke out in the
factory. adjacent to the premises in question and ftre brigade men D
had entered into the premises by breaking a portion of the well to
get access to'thi: pond inside the disp\ltcd premises. It is the case of
the appo\lant that on March 14, 1983, the responcfents nos. 1 to 4
along with some miscreants bad forcibly entered into the disputed
premises. · This, however; is disputed by the contesting respondents
nos. I 'to 4 herein» out of whose application to the High Court for E
intervention, the order impugned was passed by the Division Bench
and which is the subject matter of this appecial leave, they in their
application asserted that they had come to know about the appoint-
ment of the. Official Receiver from the pol;ce and they further came
to know about the offer made by the appellant for the purchase of F
the premises in dispute. The said respondent alleged that they along
with 38 families with the leave and licence of one of the co.- owners
were residing in the premises i11 question· since .1975 and had cons-
tnictcd pucca h.uts and structures and in spite of the same, according
. '
to tee said respondents, the appemnt did not inform the court of··
. the said fact before obtaining police help against them. The said ~·
respondents claimed that they were licencees under the·original
owners, Smt. Malati Das and Jitendra Nath Da~; in 'certain specified
' plots mentioned in their application. They further alleged that on
May 2, 19~3. they had come to know that the appellant had obtained
· ex-parte order from the Sub-Divisional Maj>,istrate (Executive) direc-
ting the Superintendent of Police to restore possession of the B
premises in dispnte by arranging pol·ice help. Th.e applicants had
616 SUPREME COURT RliPORts [1984] 3 S.C.[{,
y
filed an application before the learned· Sub-Divisional Magistrate
under Section 145 of the Code of Criminal Procedure with a prayer
. , ,• to recali the ex-parte order mentioned hereinbefore and to call for a:
report from the local police regarding posses1ion of the said
applicants in the said disputed prembes. The Sub-Divisional Magis-
trate, it was alleged, did not pas> any•order and was pleased to
.B
direct' to put up the said application on May 7, 1983. T.hongh no
formal order was passed the said application was kept on (ecord. ·~
·The applicants further alleged that coming to know that certam •
other order might be passed, the applicants tnoved a 1evision applica-
tion under the Criminal Rev\sional jurisdiction before the High
•
a Court and thereafter had obtained the stay of the order of April 26,
1983 passed by the learned Sub-Divisional Magistrate. The said
. application nnder Section 145 of the Code of Criminal Procedure is
pending. ·
The pendency of th~ proceedings under Section 145 of Code
of Criminal Procedure and order, if any, passed thereon does no.t in ,,
any way affect the title of the parties to the disputed. p ·en~ises
though it reflects the factum of possession. See the decision of this
Court in the case of Bhinka and Others v. Charan Singh. (1)
It is in this background that the applicants in their application
before the learned Singfe Judge of the High Court prayed 'that their
E claim to be in l?ossession and their right to b~ in possession should
•be determined. and as such they should be added as defendents to
the suit and as a consequence, the order for police help granted by
the High Court in ejecting the applicants should be recalled. The
said application came up to, be heard by a learned Single Judge of
the High Court and by an order passed and judgment delivered, the
F learned Judge rejected the application hording that the respondents
nos. 1 to 4 being . the applicants therein were tresspassers and had
no right to be in possessi.)n of the premises alter the Official
Receiver hail been appointed receiver ,,nd further it was held that
the parties had no right to grant any leave or licence after the pro-
. party came under the custody of the Ofliicial Receiver. as receiver
.G appointed m the 'suit. The learned Judge further held that a sale
had been concluded in favour of the present appellant and therefore
though noting that the respondents nos. 1 to 4 being the applicants
therein had offered to pay a sum of Rs. 1,00,000 more for the
.. purchase of the premis.es in dispute, the learned Judge rejected the
said offer and dismissed t_heir application.
H
(IJ [1959] Suppl. 2 s.c.R. 798.
SAl>ltuRAM v. P. B. SA1\KA.R (Sabya<achi Mukhatji, J.) 617

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

"On the other hand, we find that 38 families have
been residing in the disputed land. It is submitted by Mr.
' Bhabra that these persons are all tresspassers without any c
, vestige of title. It is however, the case of the petitioners .
that they haye been residing in the disputed land by making
certain structures nnder the leave and licence of two of the
owners pf the said premises altl;10ugh one of the owners,
Smt. Mala ti Das, who is alleged to have granted t!ie licence;
has denied grantin~ of such licence. If the disputed land is D
. 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 E
disputed land. Moreover, the petitioners have offered to
pay the price of Rs. 5,00,000 that is to say Rs. 1,00,000
more than the offer of the respondent No. 2."

The Division Bcn:ch directed that Rs. 1,25,000 should be paid
by present respondents·! to 4 on or before August I, 1983 which it F
·may be noted has been paid and thereafter pay the balance sum of
Rs. 3,75,000 by August 29, 1983' which sum however could not be
paid because in the meantime. special leave to appeal was granted ·
by this Court and a stay had been obtained. It may be mentioned
that the balance of the considersti.on of Rs. 3 lacs offered by the G
pres~nt appellant has been paid only after the special leave had
been obta.ined from. this Court. The Division Bench further directed
that in ease payments were made within the time, the property in
quest10n should be conveyed to the persons named in the said ord
It was further
. . the respondents 1' to 4 .com m1'tterd.
directed that in case e
. d~fault m _paymg a ~urn of .Rs. 1,25,000 or 3,75,000 within the .H

r stipulated time, the said order .would stand vacated and the order ·of
618 SUPREME COURT REPORTS [1984] 3 S.C.R.,
A ·learned Single Judge would stand confirmed i.e. ~ale would be made
to the appellant.

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

Oa the qnestion whether in the 'facts and circumstances that
c have happened, the Court could pass the order it had done, some
contentions were urged whether the sale in question was a court
sale or a private s1le or a sale by the receiver. and whether confir-
mation of the court was required for such a sale. Some of the
decisions cited at !he Bar ou this point have been noted by my
Brother. Jn the view I hwe take,n it is not necessary in this case . r·
D to decide whether a confirmation of sale by the court ih the circum-
. stanc·os under which the prop,rty was directed to be sold was nece-
ssary or not, !bough it may be sufficient lo note that there was some
divergence of opinion ·on this point. On the nature of the possession
by the receive;· and how interference with such possession should;
bo dealt witl1 by law have also been noted in the observations in
Halsbury's Law of England, 4th Ed., Volume 39 pages 451 and AS2,
paragraphs 890 and 891. See also Kerr On Receb'ers-15th Edition·
page 155 and also Kerr On Receivers-16th Edition pages 121 and
122. It is well-settled that when the property is in custody of a
r~ceiver appointed by the court; the property is in the cu,tody of
the· court and interference with such possession should not be enco-
uraged and no p1lty can acquire any title or right by coming in or
over th' property which is in the possession of the receiver without
leave. or consent Of the receiVcr 'or sanction of the court. It was
' urged tint in as much as no such leave had been obtained, by the
r~spoad~nls.niJs. 1 to 4, possession, if any, of the sai9. respondents
G or entry into the· land by .the said respondents at a time when
. indisputa.bly there was receiver ·was illegal. In view of tl)e. fact~
th1t have happened and in the light of the controversy before us
now, in my opinion, it would. be futile to determine at this stage
whether tlie entry of the respondellts nos. I to 4 was legal or illegal.
It may be mentioned, however, that so long as proceedings under
H Section. t45 of Code of Criminal Procedure were pending before the
appropriato court, without any adjudication of the respondents nos.
'#

SAD!lURAM v, p,9, SARKAR (Sabyasachi Mukharji, J,} 619
. ..
· J to 4's right to be in possession and di_recting that they be phys1·
,
A
ca!ly ejected by police help without hearing them or without notiC.e to
the mis not a correct leg1l position to take for court of law adm1ms·
tering justice, But it is not necessary for the purpose of this
appeal to express any final opinion on Jhat
B
It appears in the background of the facts and circumstances of
• t the case· that the Division Bench took the view that there was no
concluded contract of sale in favour of the appellant and it appears
to us that such a view was a possible view to be taken in view of the
facts I have mentioned and if that -is so, such a conclusion cannot
' and should not be· interfered with in.appeal under Article !36 of the
Constituticm, Assuming even that though not legally but as a
reality of fact, the respondents nos. 1 to 4 were and are in possession
of the dispute premises, they want to purchase the premises by' paying
more than the offer then made, the offer 111ade by the appellant to
-. 1 purchase the premises in dispute seems to be. rather low in the
D
context of facts and circumstances prevailing in such arehs nearaboui
Calcutta. The area comprises of about six bighas Le, about 120
cottabs· of land. It has been suggested ,in one ofthe affidavit on
behalf of respondents nos. l to 4 that the prices prewlent in those
areas are about.Rs, 14,000 per cottah" Thorefore 1t was suggested
that in the transaction between the appellant and receiver or with .E
tlie parties, there is more than what meets the eye, We, however,
need not speculate on the same. The facts on which I would like
to rest my decision are: (I) there is not a concluded contract in
favour of the appeilant This view has ·been accepted by the Di vi·
sion Bench. It is a plissible ,view, This view sho.u]d not. be
interfered within appeal under article 136 of the Constitution;, and p
(2) the fact is that the respondents J to 4 are in possession with
large number of their families, The original entry might be, if
their version is rejected, illegal and without" the authority of the
court as no leave was obtained but their possession is a reality. Illi·
gitimacy of entry does not debar them from offering a higher price
in purchasing a property, contract for sale in respect Of which has G
not yet been concluded; and (3} the ,property is in custodia /egis.
Though the court directed the receiver to sell, as the sale has not
been concluded .• the court .retains its power to direct its officer to
sell to such other person the transaction of which will apparently ,
benefit the parties as appearing from the facts on record or as from
the facts which meet the eye, · (4) The factor that large number of H
people are in. possession with their families and conclusion of sale
620 SUPREME COURT REPOR ts [JcJ84) ~ S.C;lt
A •
to them would cause non-interference with their continuance are
factors which the court can and should t~ke into consideration in
deciding the controversy in this case. (5) There has not indeed been
any proper. adjudication of the right of the respondents nos. I to 4
to be in possession of the premises in questi<rn and even if their
entry was tainted with illefality, it is not of such a magnitnde, in
I! view of subsequent facts that because of illegitimate entry, they will
be deprived of the right to bargain on prop~r term; to p1rch1s~ the
property which is in the custody. of the court. · If there has not
been any proper sanction of the court, this is only a procedural
irregularity and as is well-settled that rules of procedures are Hand ,
c 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

D
~t the expense of the bona fid,e purchaser at a court sale. As I see
the facts, the basisupon which this question is posed namely, that 1
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 be~m. any concluded contract of sale when the Division Bench
passed the order.
E
• The concept of social justice is not foreign to legal 'justice ·or
social well-being or benefit t<? the commnnity rooted in the concept
of justice in the 20th century. The challenge. of social justice as I
see it, is primarily a challenge to the society at large more than to
the court immediately. ·Social justiee is tnc of the aspirations of
our Constitution. But the courts, we must remember are pledged
to admin:stcr. ju,t'ce as by law established. In formulating the ·
concept of justice, however, the inarticulate factor that large number
of human beings should not be dislodged from their possession if
. it is otherwise possible to do so cannot but be a factor whic)1 must
and· should influence the 1\linds of judges in ihe facts of this case.
G ·It is truO' that the persons who were alleged to be in possession are
with unclean hands but they came for sh~lter and built in hntments.
·They do not want to legitimis~ their stay by illegal entry, they want
to be rehabilitated at competitive bargain price. Should they be
denied that opportunity on the ground of their origini'l illegitimacy '!
I am defmi\ely of the opinion that in these circumstances they should
H not be so denied rehabilitation. Jn administering justice-justice
according to law In this case, no law is breached in the view taken
'

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

by the Division Bench of the Calcutta High Court. The ·American A
Bar ·Association in its report in 1964 had observed that ju.risprudence
has shifted away from finespun technicalities and abstract rules to . ·
practical justice to a recognition of human beings, as the most distin•
ctive and important feature . of the universe which confronts
our senses, an.d of the funciion of Jaw as . the historic means
B
of guaranteeing that preeminence. (See ·The 'Fourteenth Amend-
• f-
ment . Centennial Volume Edited by Bernard Schwartz. page
ioj. I. therefore respectfully agree with Brother Fazal Ali when he
says, that ·in administering justice-:-social or legal, jurisprudence bas
• shifted away from finespun technicalities and abstract rules to recog•
nitiori. of human beings as 'human beings. c
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
i has done no legal wrong at all. The court has only ignored the '
non-compliaqce of not seeking court's leave for the allege!) grant of
D
licence.

Jn administering justice, or social legal, we do well to bear ,in
mind the words of Justice Holmes "The life of the law has not been
logic: it has been experience. The felt necessities of the time, th<:
prevalent. moral and . political theories, intuitions of public policy, E
avowed or unconscious, evei:i the preiudices which jqdges share with
their fellow-men, have had a good deal more to do than the syllo-
gism .in determining the rules by which men should be governed.
The law. embodies the story of a nation's development through many
centuries, and it cannot be dealt with as if it contained only the
axioms and corollaries of a book of mathe.natics. In order to know F
·what it is, we must know what it has been, and what it tends· to
become. We must ·alternately consult history and existing theories·
of legislation. But the most difficult Jabour will be to understand the
combination of the two into new prod.ucts at. every stage. The
substance· of the law at any given t~e pretty nearly corresponds, so
far as it goes, ·with what is then understood to be convement·, but . its 0
, form and machinery; and the degree to which it fa able to work out
• desired results, de.pend very much upon its past." (The ·common
Law· by Oliver Wendell Holmes-.Edited by Mark De Wolfe Howe-
Lecture I-page I).

!he '.elt necessities of time and in this case the convenience of H
s1tu~tion a11d the need for adjusting the rights of a larger number
• ' 0
622 SUPREME COURT REPORTS . [1984) 3 S.C R :r
A of people without deprivation of any accrued ~ight of anybody would
be justice according to law. Before we raject social justice' as, some-
thing" alien to legal justice, we should remember that a meaningful
definition of the rule of law must be based on the realities of contem-
porary societies and, the realities of the contemporary societies' are-
men are in acute shortage of living accommodatio11 and if they are
B
prepared to bargain and rehabilitate ,themselves on competitive i ..
terms, they should be encouraged and no technical rules should
stand in their way. That would be justice 'by highways' and not
frtfilt(ation 'by bye-lanes': ,,
C fo·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 rea~ons given by him.

N.V.K. Appeal dismissed r

•