Sadhuram Bansal Vs. Pulin Behari
Sarkar & Ors [1984] INSC 94 (26 April 1984)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
VARADARAJAN, A. (J) MUKHARJI, SABYASACHI (J)
CITATION: 1984 AIR 1471 1984 SCR (3) 582 1984
SCC (3) 410 1984 SCALE (1)997
ACT:
Code of Civil Procedure 1908, Order XL
Receiver appointed by Court-Property in custody of receiver-Interference with
possession not to be encouraged- No party can acquire title or right over
property in possession of receiver.
Code of Criminal Procedure 1973, Section 145
Order passed in proceedings under this section-Does not affect title of parties
to disputed premises-However reflects factum of possession.
Administration of Justice-Social
Justice-Courts no longer merely protector of legal rights-Technicalities of law
and procedure not to be insisted upon-Substantial justice to be meted out to
parties-Necessity of.
HEADNOTE:
In a suit filed in the High Court for a
declaration and relief in respect of several properties, the Official Receiver
of the High Court was appointed Receiver. On the request of the parties, the
official Receiver, decided to sell one of the properties with the permission of
the Court.
The price of the property was fixed at Rs.
3.5 lakhs. The appellant offered a sum of Rs. 4 lakhs for purchase of the
property, and by his advocate's letter enclosed a draft for Rs. 1 lakh, being
1/4 of the amount. A meeting was held in the presence of the plaintiff and
their counsel, and at the meeting the offer received from the appellant was
considered and it was decided that the offer of Rs. 4 lakh by bank draft. The
Official Receiver accepted the offer of the appellant, communicated the
acceptance and requested the appellant to deposit the balance amount.
The Official Receiver, thereafter moved the
High Court for directions to remove respondents 1 to 4 on the ground that they
had trespassed into the property a few months earlier. Respondents 1 to 4 moved
an application for being impleaded in the suit and contended that they were
residing with their families under a licence since 1975 and had constructed
pucca huts thereon and that with the knowledge of this continuous possession,
the parties to the suit have filed the suit among themselves without impleading
them (respondents 1 to 4).
583 The Single Judge rejected the aforesaid
contentions of respondents 1 to 4 and held that though they were prepared to
offer the sum of Rs. 1 lakh more than the appellant the property could not be
sold to them.
The Division Bench, however allowed their
appeal, directed respondents 1 to 4 to pay to the Official Receiver a sum of
Rs. 1.25 lakhs immediately and the balance of Rs. 3.75 lakhs thereafter and on
such payment ordered sale of the disputed property to respondents 1 to 4 and
their 34 nominees on the ground that the Court should do social justice and in
doing such justice no technicality of law would stand in its way.
Dismissing the Appeal to this Court,
HELD: [Per Fazal Ali & Sabyasachi
Mukharji, JJ Majority] In administering justice-social or legal-jurisprudence
has shifted away from finespun technicalities and abstract rules to recognition
of human beings as human beings. The Division Bench of the High Court had
adopted the above approach, and no law is breached by the view taken by it. It
is improper for this Court in exercise of the discretion vested under Art. 136
of the Constitution to interfere with that decision.
[595-FG; 622A-B] [Per Fazal Ali, J.]
1. In our opinion, there appears to be some
misapprehension about what actually social justice is. There is no ritualistic
formula or any magical charm in the concept of social justice. All that it
means is that as between two parties if a deal is made with one party without
serious detriment to the other, then the Court would lean in favour of the
weaker section of the society. Social justice is the recognition of greater
good to larger number without deprivation of accrued legal rights of anybody.
If such a thing can be done then indeed social justice must prevail over any
technical rule. It is in response to the felt necessities of time and situation
in order to do greater good to a larger number even though it might detract
from some technical rule in favour of a party. Living accommodation is a human
problem for vast millions in our country.[595B-D]
2. Call it social justice or solving a
socioeconomic problem or give it any other name or nomenclature, the fact of
the matter is that this was the best course in the circumstances that could
have been adopted by the court.
3. Justice-social, economic and political-is
preamble to our Constitution. Administration of justice can no longer be merely
protector of legal rights but must whenever possible be dispenser of social
justice.
[595H-596A]
4. The Division Bench of the High Court has
done substantial justice by throwing aboard the technicalities particularly for
the reason that courts frown over a champartous litigation or agreement even
though the same may be valid. The Division Bench by its decision got more 584
money for the owners on the one hand and one the other sought to rehabilitate
the 38 families of the respondent who had already built permanent structures.
[597G-H] In the instant case, the Division Bench was perfectly justified in
accepting the offer of the respondents because:
(a) the respondents were prepared to pay Rs.
1 lakh more than the appellant and the appellant did not pay the balance of Rs.
3 lakhs, (b) possession being 9/10th of title, the respondents being in actual
possession would have no difficulty in becoming the owners, (c) respondents
were prepared to purchase the property notwithstanding litigation, because if
they became owners no one could challenge their title or possession. The Single
Judge completely ignored two material aspects: (a) that a bulk of the
consideration money viz. Rs. 3 lakhs out of Rs. 4 lakhs was not paid by the
appellant, and (b) that an owner also has right to impose certain conditions,
and in exercise of that, the condition that the purchase would have to buy the
land subject to the pending litigation was imposed [579C-F; 5 6A-D] (Per
Varadarajan, J. dissenting)
1. The Division Bench had no right or
justification to alter or modify the earlier order made for the sale of the
property which had become final, or to hold that a subsequent offer made by
respondents 1 to 4 to purchase the property for Rs. 5 lakhs should be accepted
merely because it appears to be advantageous to the owners of the property in
the name of social justice. [612F]
2. The benefit claimed on behalf of
respondents 1 to 4 which cannot called a right, for there is no corresponding
obligation-cannot be equated with or even brought anywhere near the social
justice mentioned in the preamble of the Constitution. [612G]
3. Respondents 1 to 4 are trespassers in
respect of the property which is in custodia legis and they are in contempt of
the Court. They cannot be allowed to continue to be in contempt and urge it as
a ground for obtaining the benefit of the sale of the property in their favour.
If the appellant has not complied with any condition it may be ground for the
owners and the Official Receiver not to accept his offer and refuse to sell the
property to him and not for respondents 1 to 4 to raise any objection. The
offer has been accepted rightly or wrongly more than once and there fore the appellant
may have a right to sue for specific performance of the contract on the basis
of that acceptance by the official Receiver given with the approval of the
parties. The same is the position in regard to the delay of about a month in
paying the balance of Rs.3 lakhs by the appellant. [611D-F] In the instant
case, the property has been agreed to be sold by private treaty and the
Official Receiver has been authorised to sell the property either by public
auction or by private treaty. The Court does not come into the picture in such
a case and there is no need for the Court to approve 585 or confirm such sale.
The parties who are sui juris must be deemed to have known their interest best
when they chose to approve the sale of the property for Rs. 4 lakhs in favour
of the appellant notwithstanding the fact that respondents 1 to 4 had offered
to purchase the property for Rs.5 lakhs.
The appeal has therefore to be allowed.
[612E; 613B] Everest Coal Company (P) Ltd v. State of Bihar & Others,
[1974] 1 SCR P. 571 at P. 573, Kayjay Industries (P) Ltd. v. Asnew Drums (P)
Ltd & Others, [1974] 3 SCR P. 678, Jibon Krishna Mukherjee v. New Bhee bhum
Coal Co. Ltd. & Apr., [1960] 2 SCR P. 198. Tarinikamal Pandit & Others
v. Prafulla Kumar Chatterjee, [1979] 3 SCR P. 340, referred to.
(Per Sabyasachi Mukherji, J)
1. The pendency of the proceedings under
Section 145 of the Code of Criminal procedure and order, if any, passed thereon
does not in any way affect the title of the parties to the disputed premises
though it reflects the factum of possession. [616D] Bhinka and Others v. Charan
Singh, [1959] Supp. 2 S.C.R. P.798 referred to.
2. When the property is in custody of a
receiver appointed by the court, the property is in the custody of the court
and interference with such possession should not be encouraged and no party can
acquire any title or right by coming in or over the property which is in the
possession of the receiver or sanction of the court[618F] Halsbury's Laws of
England, 4th Edn., Vol, 39 pages 451,452 paragraph 890,891: Kerr On
Receivers-16th Edn. pages 121 referred to.
3. The concept to social justice is not
foreign to legal justice or social well-being or benefit to the community
rooted in the concept of justice in the 20th century. The challenge of social
justice is primarily a challenge to the society at large more than to the court
immediately. Social justice is one of the aspirations of our Constitution. But
the courts, are pledged to administer justice as by law established.[620F] In
the instant case, in formulating the concept of justice, however, the
inarticulate factor that large number of human beings should not be dislodged
from their possession if it is otherwise possible to do so cannot but be a
factor which must and should influence the minds of judges. It is true that the
persons who were alleged to be in possession are with unclean hands, but they
came for shelter and built in hutments. They do not want to be rehabilitated at
competitive bargain price. In the circumstances they should not be denied
rehabilitation on the ground of their original illegitimacy.
4. The felt necessities of time and in this
case the convenience of the situation and the need for adjusting the rights of
a larger number of 586 people without deprivation of any accrued right of
anybody would be justice according to law. Before social justice as something
alien to legal justice, is rejected, it should be remembered that a meaningful
definition of the rule of law must be based on the realities of contemporary
societies and the realities and the realities of the contemporary societies
are-men are in acute shortage of living accommodation-and if they are prepared
to bargain and rehabilitate themselves on competitive terms, they should be
encouraged and no technical rules should stand in their way.
That would be justice by highways' and not
infiltration 'by bye-lanes'. [621H-622B]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 5887 of 1983.
Appeal by Special leave from the Judgment and
Order dated the 25.7.1983 of the Calcutta High Court in Appeal No.
271 of 1983.
S.S.Ray, S.N.Kaker, P.K.Mullick, R. Deb,
N.P.Aggarwala and B.P.Singh for the Appellant.
G.L. Sanghi, and H.K. Puri for Respondent.
Anil Dev Singh and Ashok Sil for Respondent
No. 5.
The Judgment of the Court was delivered by
FAZAL ALI. J, This appeal by special leave against the judgment of the Calcutta
High Court discloses an unfortunate litigation which proves the well-known
legal maxim "delay defeats justice" and arises out of a Will executed
by the testator which was hotly contested by various rival claimants resulting
in an action which went on merrily and sprightly for almost three decades as a
result of which in the back-waters of the long-drawn litigation most of the
claimants died and their successors were interested not in the property but in
the money which the property would being, if sold.
As a result of internecine dispute between
the heirs, an Official Receiver had to be appointed to look after the property
and the final end of the drama seems to have begun when the Receiver, on the
request of the parties, decided to sell the property with the permission of the
court by a private treaty least the litigation might draw the last drop of the
blood of the property rights of the heirs. Meanwhile, some more events followed
which made the task of the Receiver both complex and complicated as the
respondents put up their claim to possession of the property either as
trespassers or as licensees from some of the heirs.
587 Thus, while the negotiations for the
private treaty were going on a new upshot in the guise of the respondents'
claim seems to nip in the bud the attempt of the owners to get the property
back. During the course of the three decades, lot of changes took place in
Howrah-the population rose by leaps and bounds, a number of buildings came up
and perhaps it became next to impossible for the heirs to occupy the premises
again. To add to this, came up a new litigation in the shape of proceedings
under s. 145 of the Code of Criminal Procedure between the parties.
The heirs having given up all hopes of
getting vacant possession became "sadder and wiser" to sell the
property if they could get a handsome amount for the same. A bargain was,
therefore, struck, with the approval of the Receiver, by which the entire
property was agreed to be sold to the appellant for a sum of Rs. 4 lakhs, under
which he paid Rs.
1 lakh and promised to pay the remaining
amount of Rs. 3 lakhs at an early date. The appellant also expressed his
willingness to take the property under sale subject to the pending litigation.
The matter, however, did not end here because
the trespassers jumped into the fray in order to stop or render the sale
nugatory. When the matter came up before the court, it, on being satisfied that
the sale was from all points of view in the interest of the heirs, affirmed the
said sale.
The appellant contended that the possessions
of the premises by the respondents did not pose any problem because they being
rank trespassers could be evicted summarily by the Receiver under the
provisions of the Civil Procedure Code.
But, we think that the matter was not so
simple as that because once possession of the premises by the respondents had
lasted for a year or more and proceedings under s. 145 of the Criminal Procedure
Code had already started, the law had to take its normal course. So far as the
criminal court it concerned, the only course which could at best be taken was
to declare possession of the party who was in possession two months next before
the initiation of the proceedings under s.145 or of the party who was found to
be in possession of the property at the relevant time.
The relevant portion of s. 145 may be
extracted below:
"145 Procedure where dispute concerning
land or water is likely to cause breach of peace.
588 (4) The Magistrate shall then, without
reference to the merits or the claims of any of the claims of any of the
parties to a right to possess the subject of the dispute, peruse the statements
so put in, here the parties, receive all such evidence as may be produced by
them, take such further evidence, if any, as he thinks necessary, and, if
possible, decide whether any and which of the parties was, at the date of the
order made by him under sub-section (1), in possession of the subject of
dispute:
Provided that if it appears to the Magistrate
that any party has been forcibly and wrongfully dispossessed within two months
next before the date on which the report of a police officer or other
information was received by the Magistrate, or after that date and before the
date of his order under sub-section (1), he may treat the party so dispossessed
as if that party had been in possession on the date of his order under
sub-section (1).
(6) If the Magistrate decides that one of the
parties was, or should under the proviso to sub-section (4) be treated as
being, in such possession of the said subject, he shall issue an order
declaring such party to be entitled to possession thereof until evicted there from
in due course of law, and forbidding all disturbance of such possession until
such eviction; and when he proceeds under the proviso to sub-section (4), may
restore to possession the party forcibly and wrongfully dispossessed."
With this primordial preface and institutional introduction, we now proceed to
summaries the facts of the case, most of which have been reflected in what we
have said above.
The story of the case begins with the
execution of a Will and testament by one Jitendra Kumar Das on May 22, 1952 in
favour of some of his near relations, in respect of premises No. 7, Duffers
Lane, Liluah, Howrah also some premises in No. 211, old China Bazar Street,
Calcutta. The suit was instituted for a declaration that the aforesaid Will was
void and invalid, hence the legatees under the Will had no right, title or
interest. The suit went on dingdong from one stage to another until 1973 when,
according to the respondents, two of the owners, viz., Smt. Malati Das and 589
Jitendra Kumar Das or at least one of them put them (respondents) in possession
of the Duffers Lane property under a leave and licence. During the course of
their possession the respondents constructed permanent structures and have been
regularly residing there since 1975.
It is alleged that in February 1983, fire
broke out in the factory adjacent to the premises in question and fire- brigade
men entered into the premises by breaking a portion of the wall to get access
to the pond. It is the case of the appellant that on March 14, 1983, respondent
Nos. 1 to 4...
Along with some miscreants forcibly entered
into the land.
This, however, is disputed and is the root of
controversy in this case. It appears that the present appellant, who had not
yet become a purchaser, informed them. Official Receiver that certain persons
had entered into the premises in question. On this the Official Receiver
informed the parties. On 31th May, 1983 the Official Received authorised the
appellant to take steps for protection of the property.
It is difficult to appreciate how before a
concluded contract and a conveyance in favour of the appellant, the Official
Receiver could have authorised the present appellant to take steps for removal
of respondents treating them unilaterally as trespassers Order was obtained on
May 24, 1983 from a learned Single Judge of the High Court directing the police
to remove the unauthorised occupants On June 22, 1983 respondent Nos. 1 to 4
made an application for being added as parties to the said pending suit for
recalling the order for police help to eject them from the premises in dispute.
In the said application four of the
respondents, viz, Pulin Behari Sarkar, Manick Seel, Gope Nath Sarkar and
Sudhanshu Bimal Dey, mentioned the fact that they had come to know about the
appointment of the official Receiver from the police and they had further come
to know about the offer made by the appellant for the purchase of the premises
in dispute. The said applicants (being respondents herein) alleged that they
alongwith their families, with the leave and licence of one of the co-owners, were
residing in the premises since 1975 and had constructed pucca huts and in spite
of the same, the appellant did not inform the Court of the said fact before
obtaining police help against them. It is further alleged that on May 2, 1983
they had come the know that the appellant had obtained ex parte order from the
learned Sub-Divisional Magistrate (Executive) directing the Superintendent of
Police to restore possession of the disputed premises, comprising about six
bighas of land, by arranging police pickets.
590 Thereafter, the said applicants filed an
application before the learned Sub-Divisional Magistrate (Executive), Howrah,
under s. 145(S) of the Code of Criminal Procedure with a prayer to recall the
ex parte Order mentioned hereinbefore and to call for a report from the local
police and others regarding possession of the said applicants in the disputed
premises. The Sub-Divisional Magistrate did not pass any order but adjourned
the said application to 7th May 1983. Though no formal order was passed, the
said application was kept on the record. After coming to know that certain
other orders might be passed, the applicants moved a revision application under
the Criminal Revisional Jurisdiction of the High Court and thereafter obtained
the stay of the Order of 26th April 1983, passed by the learned Sub Divisional
Magistrate. This position is not disputed.
So, the Revision application under s. 145 of
the Code of Criminal Procedure is still pending before the High Court.
The learned Single Judge of the High Court
did not make a deeper probe into the history of the litigation and the fact
that if the respondents were in possession even as trespassers and proceedings
under s. 145 were pending and had not been quashed, they could not have been
summarily ejected. The learned Judge further noted that the respondents had
offered to pay Rs. 1 lakh more for purchase of the premises in dispute but the
learned Judge was of the view that the said offer cannot and should not be
accepted.
The Division Bench, however, was of the view
that the offer made on behalf of respondents 1 to 4 should be accepted as there
was no concluded contract of sale in favour of the appellant and hence there
was no completed sale yet. The Division Bench further noted thus:
"On the other hand, we find that 38
families have been residing in the disputed land. It is submitted by Mr. Bhabra
that these persons are all trespassers without any vestige of title. It is,
however, the case of the petitioners that they have been residing in the
disputed land by making certain structures under the leave and licence of two
of the owners of the said premises although one of the owners, Smt. Malati Das,
who is alleged to have granted the licence, has denied granting land of such
licence. If the disputed land is sold to the respondent No. 2, then 38 families
who have been residing therein would be evicted with police help. In 591 our
opinion, the Court should do social justice and in doing such justice any
technicality of law will not stand in its way. Social justice requires that the
disputed land should be sold to the petitioners and others residing on the
disputed land. Moreover, the petitioners have offered to pay the price of Rs.
5,00,000, that is to say Rs. 1,00,000 more
than the offer of the respondent No. 2." At this stage, it may be
necessary to notice the terms and conditions under which the owners agreed to
sell the properties to the appellant, which may be extracted thus:
"We further understand that a meeting
held by you it has been decided that an offer should be accompanied by a Bank
Draft on State Bank of India of an amount equivalent to 25% of the offer.
We hereby make an offer for purchase of the
above property for Rs. 4,00,000 (Rupees four lacs) subject to the Vendors'
making out a good and marketable little free from encumbrances on behalf of our
client Sri Sadhuram Bansal of No. 23A, Netaji Subhas Road, Calcutta-700 001.
The sale will be completed within six months or such further extended time as
may be agreed upon in one or more lots by one or more sale deeds in favour of
our client or his nominee or nominees.
We hereby enclose a draft of State Bank of
India for Rs. 1,00,000 drawn in your favour as desired by you.
After hearing from you that our client's
offer had been accepted, we shall forward to you the agreement for sale for
your approval." This offer was made by the appellant on December 20, 1982
and at a meeting convened by the receiver the owners while generally agreeing
with the terms of the said offer, imposed some conditions. For instance, Mr.
Mitra, counsel for some of the objectors while indicating his clients' view
emphasised that the acceptance of the offer would be subject to the buyers
agreeing to purchase the land with pending litigation; the exact sentence may
be extracted thus:
"My clients have no objection with
regard to the 592 acceptance of the said offer of M/s L.P. Agarwalla & Co.
subject to their clients agreeing to purchase the same land with pending
litigation in respect of the said property." Similarly, the counsel for
the other owners also accepted the offer of the purchaser. After having
accepted the offer, it was decided to circulate a draft agreement for sale for
finalising approval of the owners.
Before proceeding to another important stage
in the case, it may be mentioned that from what has been extracted above, the
offer of the appellant through their attorney (L P. Agarwalla & Co.) was
not accepted unconditionally but with certain reservations which on a close
scrutiny ran counter to the stipulation mentioned in the offer of the
purchaser. For instance, while the purchaser insisted that he would buy the
properties subject to the vendor's making out a good and marketable title free
from encumbrances but this does not appear to have found favour with one of the
owners because the clients of Mr. Mitra had clearly indicated that the offer
would be accepted only if the purchasers were prepared to buy the land with the
pending litigation.
Thereafter, the matter having been placed
before the court, the receiver informed L.P. Agarwala & Co. that the offer
of the purchasers was accepted and the balance of Rs. 3 lakhs had to be paid at
an early date. The Latter informing L.P. Agarwala & Co. was written by the
receiver on 13.1.83. In the context of the circumstances mentioned above, the
term 'at an early date' had to be construed literally so as to mean
'expeditiously and without any reasonable delay'. It cannot be interpreted to
give a long rope to the purchaser to deposit the balance of the amount whenever
he liked. It would have been better if the receiver could have fixed a
particular date by which the balance amount was to be deposited, failing which
the contract would stand cancelled. Even so, as a corollary of the
correspondence between the parties, this condition must be read into the letter
of the receiver. However, the balance of Rs. 3 lakhs was never paid until the
matter came up to this Court. In between, the purchasers approached the
receiver to evict the trespassers summarily even though by that time the contract
had not passed into the domain of an executed contract but was only a executory
contract and conferred no title on the purchasers. It seems to us that the
purchasers were more concerned with taking the possession and evicting the
trespassers because they knew full well 593 that in view of the proceedings
under s. 145, it would have been difficult for them to get the possession and
therefore reserved the balance amount of Rs. 3 lakhs until they got the
possession.
They, however, rose up from their deep
slumber only when, they realised that the respondents had made an application
for being arrayed as parties to the suit by putting forward their case that
since they were in possession of the properties and had also constructed their
own structures, they could not be evicted summarily because the matter was sub
judice.
In order, however, to cut the matter short,
the respondents themselves made a clear offer to purchase the properties in
question by paying Rs 1 lakh more than the appellant and prayed to the court
that their offer should be accepted. In fact, there was no bar to the receiver
in accepting a higher offer because the appellant's offer had not yet been
translated into action or become operative as the purchaser had not yet
fulfilled the two conditions, viz., (1) not making the payment of the balance
amount of Rs. 3 lakhs, and (2) not indicating that they would buy the
properties subject to the pending litigation.
It was argued by the appellant that so far as
he was concerned, the contract was complete and could not be superseded even if
a higher offer was made to the receiver.
This argument cannot be accepted because the
purchasers having themselves committed a breach of the contract could not
insist that the contract should be enforced without their having complied with
the conditions agreed to between the parties. Afterall, this was not a court
sale where the highest bid was made and the amount was deposited that the sale
became irrevocable.
In these circumstances the Division Bench
directed that Rs. 1.25,000 should be paid by the present respondents 1 to 4 on
or before 1st August 1983, which it may be noted has been paid, and thereafter
pay the balance sum of Rs.
3,75,000 by 29th August 1983 which could not
be paid because in the meantime special leave to appeal was granted by this
Court and a stay was obtained. The Division Bench further directed that in case
payments were made within the time, the property in question should be conveyed
to the persons named in the said order. It was further directed that in case
respondents 1 to 4 committed default in paying the purchase price within the
stipulated time, they said order would stand vacated 594 and the order of the
Learned Single Judge would stand confirmed, i.e., the sale would be made in
favour of the appellant.
Coming back to the facts, the respondents
claimed before the learned trial Judge for Investigation of their right to be
in possession of the disputed premises by virtue of the leave or licence
granted by one or two of the co- owners. The investigation of that point on
evidence did not take place though there are passing observations in the
decision of the learned Single Judge that Smt. Malati Das and Jitendra Kumar
Das had no title or interest to create any licence in their favour and that one
of them further denied having given any such licence. It has to be borne in
mind that there has been no investigation of the respondents' right to be in
the premises; even a trespasser cannot be thrown out of his occupation or
possession except, by due process of law. The owners appeared in these
proceedings and supported the appellant. In fact, in the affidavit filed on
behalf of the Receiver it has been made clear that they leave the matter to
this Hon'ble Court.
The appellant's rights which have not yet
crystallised would not be hampered. Court's dominion over the property is still
there. The official Receiver is after all an agent of the Court as has been
held by this Court in a number of cases.
In the case of Everest Coal Company (P) Ltd.
v. State of Bihar & Ors., this Court reiterated that when a court placed a
Receiver in possession of property, the property came under the custody of the
court, the Receiver being merely an officer or agent of the court.
In Kayjay Industries (P) Ltd. v. Asnew
Drums.(P) Ltd. & Ors. this Court reiterated the court's obligation to
exercise discretion to make out a fair sale out of a bargain.
In Tarinlkamal Pandit & Ors. v. Prafull
Kumar Chatterjee (dead) by LRS this Court reiterated (at p. 353) that the
receiver was appointed under order 40 Rule 1 and a property could be sold by
the receiver on the direction of the Court even by private negotiations.
595 If, in these circumstances the court
directs that on payment of a higher sum of money for the benefit of the owner,
and without any breach of any legal right of the intending purchaser, the
property can be conveyed to persons in occupation with large number of
families, the Court acts properly and with social well being in mind.
Mr. S. S. Ray, appearing for the appellant,
submitted that the entire question was a legal issue and there was no warrant
for the learned Judges of the High Court to have imported the doctrine of
social justice. In our opinion, there appears to be some misapprehension about
what actually social justice is. There is no ritualistic formula or any magical
charm in the concept of social justice. All that it means is that as between
two parties if a deal is made with one party without serious detriment to the
other, then the Court would lean in favour of the weaker section of the
society, Social justice is the recognition of greater good to larger number
without deprivation of accrued legal rights of anybody. If such a thing can be
done then indeed social justice must prevail over any technical rule. It is in
response to the felt necessities of time and situation in order to do greater
good to a larger number even though it might detract from some technical rule
in favour of a party.
Living accommodation is a human problem for
vast millions in our country. The owners, in this case, are getting legally Rs.
1 lakh more.
We must remember that in administering
justice-social or legal jurisprudence has shifted away from finespun
technicalities and abstract rules to recognition of human being as human beings
and as human needs and if these can be fulfilled without deprivation of
existing legal rights of any party concerned, courts must lean towards that and
if the Division Bench of the High Court, in the facts and circumstances of the
case, has leaned towards that, it is improper for this Court in exercise of the
discretion vested under Art. 136 of the Constitution to interfere with that
decision. We would do well to remember that justice-social, economic and
political-is preamble to our Constitution.
Administration of justice can no longer be
merely protector of legal rights but must whenever possible be dispenser of
social justice.
Call it social justice or solving a
socio-economic problem or give it any other name or nomenclature, the fact of
the matter is that this was the best course in the circumstances that could
have 596 been adopted by the court. Unfortunately, the Single Judge completely
ignored the following important facts which have been indicated by me earlier:-
(1) that a bulk of the consideration money, viz., Rs. 3 Lakhs out of Rs. 4
Lakhs, was not paid by the appellant even until the time when the learned
Single Judge had passed the order nor was it paid even when the matter was in
the High Court, and (2) the learned Single Judge overlooked the fact that an
owner also has a right to impose certain conditions and in exercise of that he
had imposed the condition that the purchaser would have to buy the land subject
to the pending litigation whereas in the offer made by the purchaser he had
placed the onus on the owners to give him a good marketable title free from
litigation.
Thus, there was a clear-cut contradiction on
this point which does not appear to have been noticed by the Single Judge and
perhaps not even by the owners because they were concerned more in getting the
money as early as possible.
The Division Bench, therefore, accepted the
offer of the respondents and passed the following order:
"In the circumstances, we vacate the
said two orders of the learned Judge dated May 24, 1983 and May 26, 1983 and
set aside the impugned order dated July 18, 1983 and direct as follows;
1. The petitioners shall pay sum of Rs. 1,
25,000/-to the official Receiver on or before August 1, 1983 and thereafter pay
the balance sum of Rs. 3,75000 by August 29, 1983 to the official Receiver.
2. If the aforesaid sums are paid within the
dates mentioned above, the official Receiver shall sell the land of the
disputed premises No. 7, Duffers Lane, Lilluah, Howrah to the petitioners and
to their following nominees who have been residing in the said premises.."
At page 90 in 'The Dictionary of Essential Quotations' com- 597 piled by Kevin
Goldstein-Jackson, John Stuart Mill aptly observes thus:
"...the sole end for which mankind are
warranted, individually or collectively, in interfering with the liberty of
action of any of their number, is self- protection. That the only purpose for
which power can be rightfully exercised over any member of a civilised
community, against his will, is to prevent harm to others. His own good, either
physical or moral, is not a sufficient warrant." Striking, therefore, a
just balance between the claims put forward by the appellant and the
respondents, we are convinced that the Division Bench of the High Court was
perfectly justified in accepting the offer of the respondents for the following
reasons:
(1) that the respondents were prepared to pay
much higher amount than the appellant (i.e. Rs. 1 Lakh more) even at the very
behest; the appellant did not pay the balance of Rs. 3 lakhs, which was a
substantial part of the consideration, at the earliest moment as stipulated in
the agreement but deposited the amount only when the case came up before this
Court, (2) that possession being 9/10th of title and the respondents being in actual
possession of the property would have had no difficulty at all in becoming the
owners without any further litigation.
(3) that the respondents were prepared to
purchase the property notwithstanding the litigation obviously because if they
had become the owners, no one could have challenged their title or possession.
In such a situation, therefore, in our
opinion, the Division Bench of the High Court has done substantial justice
throwing aboard the technicalities particularly for the reason that courts
frown over a champartus litigation or agreement even though the same may be
valid. Thus, by its decision the Division Bench got more money for the owners
on the one hand and on the other sought to rehabilitate the 38 families of the
respondent who had already built permanent structures.
598 For the reasons given above, we find
ourselves in complete agreement with the judgment of the Division Bench of the
High Court which we hereby affirm with the observations that since the dates
mentioned in the Division Bench's order have already passed, we modify the said
order to this extent that as the respondents have already paid a sum of Rs.
1.25 lakh to the official Re eiver they shall pay him the balance of Rs. 3.75
lakhs by August 15, 1984 and shall also insert a condition that they would be
being the properties notwithstanding the pending litigation, failing which the
appeal shall stand allowed and the order of the Single Judge stand restored. In
the circumstances of the case, we make no order as to costs.
VARADARAJAN, J. This appeal by special leave
is directed against the order of a Division Bench of the Calcutta High Court
dated 25.7.1983 made in an application of respondents 1 to 4 for the issue of
an interim order pending consideration of the appeal filed against the order of
a learned Single Judge of that High Court dated 18.7.1983 dismissing their
application for being impleaded as defendants in Suit No. 2024 of 1952 on the
file of that High Court as also in the application of the official Receiver,
Calcutta High Court affirmed by one Ashok Kumar Rai on 20 5.1983 and for
staying and setting aside that Court's earlier orders dated 24.5.1983 and
26.5.1983.
Suit No. 2024 of 1952 was filed in the
Calcutta High Court on 28 5 1952 by one Prasad Nath Das, husband of Malati Das
and father of the then minors Prabir, Kumar Das and Pradeep Kumar Das, for
declaration and other reliefs in respect of certain properties including No. 7,
Duffer's Lane, Howrah, hereinafter referred to as the 'disputed property'
against certain persons including one Jitendra Kumar Das who is the second
defendant in that Suit. The official Receiver of the High Court was appointed
as Receiver in that suit on 11.8.1953 in respect of certain properties
including the disputed property and he took possession of the disputed property
on 13 8.1953. An application was made in August 1982 for sale of the disputed
property and distribution of the sale proceeds amongst the parties entitled
thereto. On 11.10.1982 C. K. Banerjee, J, passed an order in that application
for sale of the disputed property in these terms:
"In that view of the matter there will
be an order for sale in terms of prayer (a). In the event the properties are
599 sold by private treaty the official Receiver will call a meeting of the parties
and obtain their approval to such sale by private treaty. The provisional
allottees or any other party to the suit would be entitled to bring intending
purchasers for the said property. There will also be an order in terms of
prayer(b). In the event the properties are sold the petitioner Ajit Kumar Das
would be paid a sum of Rs. 10000 out of the sale proceeds subject to adjustment
against his share in the estate. The rest of the sale proceeds would be
invested by the official Receiver in short term fixed deposit in a nationalised
bank for a period not exceeding one year and to be renewed from year to year
until further orders of Court." It has to be stated that the learned
Single Judge fixed an upset price of Rs 3,50,000 for the disputed property in that
order and there is no dispute about it. The appellant Sadhu Ram Bansal offered
a sum of Rs. 4,00,000 for the property to the Receiver by his advocate's letter
dated 20.12.1982 enclosing a draft for Rs. 1,00,000 being one fourth of the
amount and saying that the offer is subject to the vendors making out a good
and marketable title free from encumbrances and that the sale will be completed
within 6 months or such other time as may be agreed upon in favour of the
appellant or his nominees. Thereinafter, a meeting was held before the official
Receiver on 12.1.1983 in presence of Prabir Kumar Das and Pradeep Kumar Das and
their Counsel as also Jitendra Kumar Das and others. That meeting was convened
in terms of a motion of a meeting dated 23.12.1982 for deciding upon the steps
to be taken regarding the intending offers for the sale of the disputed
property. In that meeting all the three offers received by the Official
Receiver were placed before the parties for their consideration and it was
decided that the offer of Rs.
4,00,000 made on behalf of the appellant
should be accepted in view of the payment of Rs. 1,00,000 by bank draft. The
official Receiver thereupon accepted the offer of the appellant and
communicated the acceptance by his letter dated 13.1.1983 and requested the
appellant to deposit the balance of Rs. 3,00,000 at an early date, In view of
Court's order dated 1.8.1983 another meeting was convened before the official
Receiver on 9.8.1983 and the parties to suit agreed in that meeting to sell the
disputed property to the appellant for Rs 4,00,000 in view of his prior payment
of Rs. 1,00,000 by bank draft and sending the balance of Rs.
3,00,000 to the official Receiver on 8.8.1983
Subsequently on the application of the official 600 Receiver, P. Banerjee, J.
of the Calcutta High Court passed an order dated 24 5.1983 directing the police
to remove respondents 1 to 4 from the disputed property and put the official
Receiver in possession thereof on the allegation of the official Receiver that
they had trespassed into the property a few months earlier. That order was
modified on 26.5.1983 as regards the designation of the Deputy Inspector
General of Police to whom also the earlier letter dated 24.5.1983 was directed.
On 22.6.1983 respondents 1 to 4 namely, Pulin Behari Sarkar, Manik Seal,
Gopinath Sarkar and Sudhansu Bimal Dey moved the Calcutta High Court for being
impleaded as defendants in Suit No. 2024 of 1952 (wrongly mentioned in that
application as Suit No. 2024 of 1982) as well as in the application of the
official Receiver affirmed by one Ashok Kumar Rai on 20.5.1983 and for staying
and setting aside the said orders dated 24.5.1983 and 26.5 1983 as stated
above. In that application respondents 1 to 4 alleged that they came to know
from the police about the orders dated 24.5.1983 and 26.5.1983 on 18.6.1983,
that Suit No. 2024 of 1982 (mistake for Suit No. 2024 of 1952) had been filed
by Prasad Nath Das on 28.5.1982 (mistake for 28.5.1952), that the official
Receiver had been appointed on 11.8.1982 (mistake for 11.8.1952), that the
Court has granted leave to the official Receiver to sell the property either by
public auction or by private treaty subject to a reserve price of Rs 3,50,000
and that the offer of Rs.
4,00,000 made by the appellant has been
accepted and one- fourth of the amount has already been paid to the official
Receiver Respondents 1 to 4 further, stated in that application that they are
residing on the disputed property with their families under a licence since
1975 and have constructed pucca huts thereon and that with knowledge of their
continuous possession of the property as licencees since 1975 the parties to
the suit have filed the suit among themselves without impleading them
(respondents 1 to 4) as parties knowing full well that they would not get
possession of the same if they filed the suit against them.
This application of respondents 1 to 4 was
opposed by the appellant through a counter-affidavit of his son Sajan Kumar
Bansal. It was stated in that counter-affidavit inter alia that in the
application filed for grant of leave to the official Receiver to sell the
disputed property it was alleged that it was under the unauthorised and illegal
occupation of one Kamal Hosiery claiming to be tenant of the property on a rent
of Rs. 100/-per month for a long time and that no rent has been paid to or
collected by the official Receiver in the last 20 years. It was also stated in
that counter-affidavit that in 601 the draft agreement for sale it is stated
there is litigation for the last 20 years between the official Receiver on the
one hand and Kamal Hosiery on the other and that Second Appeal No 1267 of 1982
filed by Kamal Hosiery against the official Receiver was pending in the
Calcutta High Court. Denying that there was any such licence as claimed by
respondents 1 to 4 it was stated in that counter- affidavit that in the
proceedings taken by respondents 1 to 4 under s. 145 of the Code of Criminal
Procedure in the Court of the Sub-Divisional Executive Magistrate, Sadar,
Howrah respondents 1 to 4 claimed to have been in possession of the disputed
property for the last 15 years which will take us to 1968 and not 1975 It is
that application of respondents 1 to 4 for being impleaded as parties to Suit
No. 2024 of 1952 and for staying and setting aside the High Court's orders
dated 24.5.1983 which came up before Monjula Bose, J Three points were urged
before that learned Judge.
The first point urged before the learned
Judge was the alleged deliberate omission of the parries to Suit No. 2024 of
1952 to implead respondents 1 to 4 as parties with the object of getting a
receiver appointed and having the property sold behind their back. The learned
Judge rejected that contention of respondents 1 to 4 in these terms:
"I accept the contentions of the learned
Advocate for the purchaser Sadhu Ram Bansal as also the contentions of the
Learned Advocate for the learned official Receiver that deliberate
mis-statements have been made in the petition with a view to impress upon the
Court that the suit was filed without impleading the petitioners (respondents 1
to 4) as parties so that possession could be obtained and an order of
appointment of Receiver and leave to sell the property could be obtained behind
the back of the petitioners (respondents 1 to 4). It is significant that the
proceedings were instituted in 1952 (Suit No. 2024 of 1952) and the official
Receiver was appointed as Receiver as far back as in 1953. Since that date the
suit property is in the possession of the official Receiver as officer of the
Court. The petitioners (respondents 1 to 4) claim to be in possession since
1975 with the leave of one Malati Das and Jitendra Kumar Das. It is significant
that the said Malati Das was brought on record only in the year 1977 after the
death of her husband and in any event no leave or licence could have been
granted by either Malati Das or Jitendra Kumar Das when the 602 Official
Receiver was in possession of the suit premises. On 21.6.1983 Malati Das
appeared in Court and denied giving any leave to any of the parties to remain
in possession of the suit premises. Falsity of the petitioners' case is thus
prima facie apparent and it appears that they have no locus standi to intervene
in this proceeding and seek any order to be added as party-defendants to the
suit and/or any other proceeding in connection therewith." The second
point urged before the learned Single Judge was as regards the validity of the
orders dated 24.5.1983 and 26.5.1983 made for delivery of possession of the
property to the official Receiver with police aid and without notice to
respondents 1 to 4. It was contended before the learned Single Judge on behalf
of respondents 1 to 4 that those orders made behind the back of respondents 1
to 4 who would be affected thereby are invalid in law and should, therefore, be
set aside The learned Judge rejected that contention in these terms:
"In any event the decision reported in
A.I.R. 1957 Calcutta 252 is an authority for the proposition that the Court has
unfettered discretion and ample power to do justice The Court is also fortified
in its view by the decision in Hira Lal Patni v. Mookaram Sethiya, reported in
A.I.R. 1962 SC 21 where the Court viewed that under order 40 Rule 1 the Court
may remove any person who interferes or intermeddles with the Raceiver's
possession. In my view different considerations apply in cases where property
in the possession of Court through its officers are sought to be the Receiver
of the Court is sought to be interfered with, and the cases cited are
distinguishable. To my mind the orders passed on the 24th and 26th May, 1983
are orders passed by the Court in the course of the administration of the
estate through the agency of the Receiver and the said orders were passed at
the instances of the Receiver in the circumstances stated in the affidavit
affirmed by Ashoke Roy on 4th July, 1953 It is apparent from paragraph 5 (vii)
that certain persons had entered the premises on the 14th March, 1983,
requiring the official Receiver to take steps with the police authorities and
it appears that his letters went unheeded requiring an application to be made
for seeking direction upon the police authorities to remove the squatters and
thereby assistance sought in the administration 603 of the estate by the
Receiver. The case reported in A.I.R. 1962 SC 21 Hira Lal Patni v. Mookaram
Sethiya is an authority in support of this proposition. The order for police
help thus obtained cannot be said to have been obtained improperly or by
suppression of any fact." The third point urged by respondent 1 to 4
before the learned Single Judge was that they were prepared to offer a sum of
Rs. 1,00,000 more than the amount offered by the appellant and that the
property should be ordered to be sold to them. The learned Single Judge
rejected that contention in these terms:
"The third point ... has no merit and is
not required to be considered inasmuch as the Court by its order dated 11th
October, 1982 directed that the official Receiver will sell the property by
public auction or private treaty to the highest offerer or offers subject to a
reserve price of Rs. 3,50,000 and had directed that in the event the property
is sold by private treaty the official Receiver would call a meeting of the
parties and obtain approval for such sale. It appears from the records of the
minutes of the Receiver's meeting held on 12.1.1983 that in the presence of
parties each one of them supported the sale to M/s L. P. Aggarwal's client,
namely, Sadhu Ram Bansal and as such the official Receiver accepted the offer
of the said Sadhu Ram Bansal, after the parties considered the price offered to
be adequate. The case reported in A.I.R. 1970 SC 2037 is an authority in
support of the proposition that once a Court comes to a conclusion that the
price offered is adequate no subsequent higher offer can constitute a valid
ground for refusing confirmation. To my mind although the transaction in suit
does not require to be confirmed as the official Receiver was invested with the
direction given on 11th October, 1982 the said decision with the approval of
the parties cannot now be re-opened and/or reagitated." For the above
reasons the learned Single Judge dismissed the petition of respondents 1 to 4
with costs.
Against that order respondents 1 to 4 filed
an appeal before the Division Bench. In that appeal respondents 1 to 4 made an
application for an interim order, and it came up for consideration before the
Division Bench consisting M. M. Dutt and C. K Banerjee, JJ. After setting out
some facts leading to the application filled by respondents 1 to 4 for being
604 added as parties to Suit No. 2024 of 1952 as well as in the application of
the official Receiver and for staying and setting aside the High Court's orders
dated 24.5.1983 and 26.5.1983 referred to above, what M. M. Dutt, J. who spoke
for the Bench has stated in the order impugned in this appeal is this:
"At the hearing of this application Mr.
Som Nath Chatterjee, learned Counsel appearing on behalf of the petitioners has
offered to purchase the disputed land at a sum of Rs. 5,00,000. It has also
been offered by him that the petitioners would deposit in Court a sum of Rs.
1,25,000 being the 25 per cent of the sale price within a week and pay the
balance sum of Rs. 3,75,000 within a month thereafter.
The application has been vehemently opposed
by the respondent No. 2. the purchaser. Mr. A. C. Bhabra, learned Counsel
appearing for respondent No 2 submits that as parties themselves have agreed to
sell the disputed land to the respondent No 2 this Court has no jurisdiction to
override the said agreement and direct the sale of the disputed land to the
petitioners. In our opinion this contention is without substance The sale has
not yet been completed. As stated already respondent No. 2 paid a sum of Rs.
1,00,000 being 25 per cent of the sale price some time in January 1983 and
since then respondent No. 2 has not paid the balance sum of the sale price. If
the sale had been completed their is no question of any offer being made by the
petitioners for the sale of the disputed land to them. Moreover, the sale will
be subject to the approval of the Court. As the sale has not yet been completed
there is no scope for the approval of the sale.
On the other hand, we find that 38 families
have been residing in the disputed land. It is submitted by Mr. Bhabra that
those persons are all trespassers without any vestige of title. It is, however,
the case of the petitioners that they have been residing in the disputed land
by making certain structures under. the leave and licence of two of the owners
of the said premises although one of the owners, Smt. Malati Das who is alleged
to have granted the licence, has denied granting of such licence. If the
disputed land is sold to respondent No. 2 then 38 families who have been resi-
605 ding thereon would be evicted with police help. In our opinion the Court
should do social justice and in doing such justice no technicality of law will
stand in its way. Social justice requires that the disputed land should be sold
to the petitioners and other residing on the disputed land. Moreover, the
petitioners have offered to pay a price of Rs. 5,00,000 that is to say Rs
1,00,000 more than the offer of the respondent No 2.
In the circumstances, we vacate the said two
orders of the learned Judge dated 24.5.1983 and 26.5.1983 and set aside the
impugned order dated July 18, 1983." The learned Judges directed
respondents 1 to 4 to pay to the official Receiver a sum of Rs. 1,25,000 on or
before 1.8.1984 and the balance of Rs 3,75,000 by 29.8.1983 and ordered that on
such payment the official Receiver shall sell the disputed property to
respondents 1 to 4 and their 34 nominees mentioned in the impugned order
without any other descriptive particulars and have observed that in the event
of default in payment of the sum of Rs. 5,00,000 as aforesaid their order will
stand vacated and the learned Single Judge's order dated 18.7.1983 shall stand
confirmed.
Thus it is seen that the learned Judges of
the Division Bench have set aside the impugned order of the learned Single
Judge dated 18.7.1983 and directed the sale of the disputed property to
respondents 1 to 4 and their 34 nominees subject to the condition that
respondents 1 to 4 deposit a sum of Rs. 1,25,000 by 1.8.1983 and the balance of
Rs 3,75,000 by 29.8.1983 towards the sale price of Rs.
5,00,000 offered by respondents 1 to 4 mainly
on the ground of social justice and incidentally having regard to the fact that
sale has not yet been approved by the Court without however deciding the
question whether approval of the Court to complete the sale of the disputed
property by the official Receiver to the appellant by private treaty subject to
the approval of the parties which has been given on 12.1.1983 and 9.8.1983, as
stated above, is necessary or not. They have at the same time observed in their
impugned order that the order dated 18.7.1983 of the learned Single Judge will
stand confirmed if respondents 1 to 4 fail to deposit the sum of Rs. 1,25,000
by 1.8.1983 and the balance of Rs. 3.75,000 by 29.8.1983. The learned Judges of
the Division Bench have thus left in tact the order dated 18.7.1983 of the
learned Single Judge in the event of respondents 1 to 4 not taking advantage of
the opportunity given to them in the name of social justice to purchase the
disputed property for 606 Rs. 5,00,000 by paying that amount in two instalments
as aforesaid Hence this appeal by special leave.
With respect to the learned Judges of the
Division Bench of the High Court I am at a loss to understand how their order
which virtually disposes of the appeal filed by respondents 1 to 4 against the
order of the learned Single Judge dated 18.7.1983 declining to add them as
parties to Suit No 2024 of 1952 as well as in the application moved by the
official Receiver in May 1983 and to stay and set aside the orders dated
24.5.1983 and 26.5.1983 and directs the sale of the disputed property to
respondents 1 to 4 and their 34 nominees on payment of the sum of Rs 5,00,000
in two instalments as mentioned above could be made in an application which has
been filed by respondents 1 to 4 for only an interim order pending disposal of
the main appeal filed against the order of the learned Single Judge dated
18.7.1983. I also fail to see what remains to be done by the learned Judges of
the Division Bench in the main appeal filed by respondents 1 to 4 against the
learned Single Judge's order dated 18.7.1983 after the learned Judges of the
Division Bench have passed the order impugned in this appeal before this Court.
That appeal before the learned Judges of the Division Bench has now become
totally redundant and unnecessary, for what respondents 1 to 4 wanted has been
ordered in their favour viz, setting aside the orders dated 24.5.1983 and
26.5.1983 which is one of the prayers in the application made before the
learned Single Judge and the sale of the property in their favour and in favour
of their nominees for Rs. 5,00,000 subject to payment of that amount in two
instalments within the time mentioned above, a relief which was not even prayed
for by them in their application before the learned Single Judge but granted
even before they had been impleaded as parties in the suit or in the
application filed by the official Receiver in May 1983. which prayer was
refused by the learned Single Judge and has not been granted even by the learned
Judges of the Division Bench in their order made in the application filed only
for interim relief. This must strike any one as an extraordinary feature in
this case, and I therefore think it must be noticed before proceeding to
consider the merits of the case in the light of the arguments advanced by Mr.
S.S. Ray, Senior Counsel appearing for the appellant and Mr. G.L. Sanghi,
Senior Counsel appearing for respondents 1 to 4 in the appeal. Another
extraordinary feature in this case is that in the name of social justice the
learned Judges of the Division Bench of the High Court have conferred the
benefit of purchasing the disputed property on rank trespassers, not ordinary
trespassers in respect of 607 property in the possession of some private
individual who is not vigilant about his rights but trespassers in respect of
property which is in custodia legis through a Receiver who was vigilant enough
to move the Court for a direction that the police to remove respondents 1 to 4
from their unlawful possession of the disputed property and put him in
possession thereof after his own letters to the police for help in that behalf
did not evoke the necessary response. I will now proceed to consider how
respondents 1 to 4 are rank trespassers in respect of the disputed property
which is in custodia legis and are contemners who are liable to be committed
for contempt and not persons on whom any benefit could be conferred by any
Court of law.
Mr. Ray submitted rightly that respondents 1
to 4 are rank trespassers in respect of the disputed property which is in
custodia legis. The case of respondents 1 to 4 is that they became licencees in
respect of the property in 1975 under a leave granted to them by Malati Das and
Jitendra Kumar Das. This case has been found by Monjula Bose, J. to be false
having regard to the fact that Malati Das came on record as a legal
representative of her husband Prasad Nath Das only in 1977 and she appeared in
Court and denied having granted any such licence to respondents 1 to 4. There
is no documentary evidence about the alleged grant of the licence.
If at all, it could only have been oral.
Respondents 1 to 4 have not examined Jitendra Kumar Das to prove the alleged
grant of the licence. Jitendra Kumar Das is a party to the approval granted on
12.1.1983 and 9.8.1983 for the sale of the disputed property by the official
Receiver to the appellant by private treaty. It is impossible that such a
valuable property has been allowed to be enjoyed by respondent 1 to 4 for no
benefit or consideration to the owners by any of the owners of the property.
Respondents 1 to 4 had no consistent case about when the alleged leave was
granted. In the present proceedings their stand is that it was granted in 1975.
But in the proceedings before the Sub- Divisional Executive Magistrate, Sadar,
Howrah under s. 145 Criminal Procedure Code they stated that the licence was
granted 15 years prior to the date of that petition which will take us to 1968
as stated above. Therefore, factually the alleged grant of licence does not
appear to be true as has been found by Monjula Bose, J. Mr. Sanghi on the other
hand, contends that the "right" claimed by respondents 1 to 4 has not
been gone into or determined and that they are entitled to the equitable relief
granted to them by the learned Judges of the Division Bench on the basis of
their admitted possession of the property. The contention that their 608
position has not been determined by the learned Single Judge is not correct.
In paragraph 801 and 808 at pages 403 and 407
of Halsbury's Laws of England, Fourth Edition, Volume 39 we find the following
passage:
"A receiver is a person appointed for
the collection or protection of property. He is appointed either by the court
or out of court by individuals or corporations. If he is appointed by the
court, he is an officer of the court deriving his authority from the court's
order. If he is appointed out of court, he is an agent and has such powers,
duties and liabilities as are defined by the instrument or statute under which
he is appointed and derive from the general law of agency ....A receiver
appointed by the court is in no sense an agent or trustee for the party at
whose instance the appointment is made. He is an officer of the court appointed
for the benefit of all the parties to the action, and their rights among
themselves are not affected." In Kerr on Receivers, Fifteenth Edition, we
find the following passage at page 155:
"A person who disturbs or interferes
with the possession of a receiver is guilty of a contempt of court, and is
liable to be committed. In extreme or aggravated cases, the court will, for the
purpose of vindicating its authority, order a committal. The court is generally
satisfied with ordering the party in contempt to pay the costs and expenses
occasioned by his improper conduct, and also the costs of the application to
commit." This Court has observed in Everest Coal Company (P) Ltd. v. State
of Bihar & Others thus:
"When a court puts a Receiver in
possession of property, the property comes under court custody, the Receiver
being merely an officer or agent of the court.
Any obstruction or interference with the
court's possession sounds in contempt of that court. Any legal action in
respect of that property is in a sense such an interference 609 and invites the
contempt penalty of likely in validation of the suit or other
proceedings." It is not disputed that after the institution of Suit No.
2024 of 1952 in the High Court, the Official Receiver was appointed as Receiver
in respect of the disputed property on 11.8.1953 and that he took possession of
the same on 13.8.1953 and it continues to be in custodia legis through the
Receiver since then. This has been found by Monjula Bose, J. in the order dated
18.7.1983. When the property is in custodia legis neither Malati Das nor
Jitendra Kumar Das, who may have rights of ownership in the property, could
grant any licence in 1975 or at any time after the Receiver had been appointed
and possession had been taken in August 1953. Even if there was such a grant of
licence it is invalid in law. Even if possession of the property had been
obtained by respondents 1 to 4 pursuant to any such grant of licence it would,
in law, be only that of trespassers. Therefore, even on the admitted case of
respondents 1 to 4 that their possession started in 1975 as licencees, in the
light of the undisputed fact that the Receiver got into possession of the
property as far back as in August 1953 under the orders of the Court, the
possession of respondents 1 to 4 could only be that of trespassers.
They are trespassers who are liable to be
committed for contempt of the Court inasmuch as they are trespassers in respect
of the property which is in custodia legis. Their possession and conduct have
to be frowned upon by the Court and not treated as grounds for conferring a
benefit on them to purchase the property albeit for a higher amount than the
amount for which the Official Receiver has agreed to sell the property to the
appellant with the approval of the parties to the suit. The learned Judges of
the Division Bench have treated this illegal act of trespass of respondents 1
to 4 on the property which is in custodia legis as the ground for conferring
the benefit on them in the name of social justice, and it is this order which
Mr. Sanghi, with all his vehemence, wants this Court to confirm.
In my view it will be totally wrong to do so.
It was conceded by Mr. Sanghi that while rendering social justice no violence
to any established and well-known principles of law could be committed. In
these circumstances, I am of the opinion that no relief could be granted to
respondents 1 to 4 who are trespassers in respect of the property in custodia
legis on the basis of their wrongful possession which is a continuing act of
contempt of the Court.
Mr. Sanghi invited this Court's attention to
the Calcutta High 610 Court's order dated 11.10.1982 for the sale of the
disputed property particularly to the portion thereof which says that Rs.
10,000 out of the sale proceeds should be paid to Ashok Kumar Rai subject to
adjustment against his share and that the balance should be invested by the
Official Receiver in fixed deposit every time for a term not exceeding one
year.
A sum of Rs. 1,00,000 was sent by a bank
draft to the official Receiver along with the offer made on behalf of the
appellant for purchasing the property for Rs. 4,00,000.
According to the offer made in that letter
the appellant had to pay the balance of Rs. 3,00,000 within six months from
13.1.1983. Mr. Sanghi invited this court's attention to the non-payment of the
balance of Rs. 3,00,000 until it was sent to the Receiver on 8.8.1983 in spite
of the Receiver asking for its payment at an early date by his letter dated
13.1.1983 by which he had communicated the approval of the parties granted on 12.1.1983
for the sale of the disputed property to the appellant for Rs. 4,00,000 and
submitted that the appellant has hot complied with the spirit of the order for
the sale of the property by private treaty. Mr. Sanghi next invited this
Court's attention to the fact that in the parties' meeting held before the
Receiver on 12.1.1983 to consider which of the 3 offers made to the Official
Receiver could be accepted Mr. D.N. Mitra, Advocate for Prabir Kumar Das and
Pradeep Kumar Das had stated that they have no objection to the sale subject to
the appellant agreeing to purchase the property subject to pending litigation.
The pending litigation referred to by Mr. Mitra evidently refers to the
litigation about the property pending in Second Appeal No. 1267 of 1982 filed
in the Calcutta High Court by Kamal Hosiery against the Official Receiver. The
appellant's learned Counsel had earlier offered in his letter dated 20.12.1982
to purchase the property for Rs. 4,00,000 subject to the vendors making out a
good and marketable title free from encumbrances. The Official Receiver has not
referred to that condition mentioned by the Advocate for Prabir Kumar Das and
Pradeep Kumar Das that the acceptance of the offer of the appellant is subject
to his agreeing to purchase the property subject to the pending litigation but
he has merely stated in his letter dated 13.1.1983 that the appellant's offer
to purchase the property for Rs. 4,00,000 has been accepted and that he should
pay the balance of Rs. 3,00,000 at any early date. The parties had accepted the
appellant's offer even in the subsequent meeting held on 9.8.1983 after the
appellant had sent the balance of Rs. 3,00,000 on 8.8.1983 to the Receiver. Mr.
Sanghi submits that there was a counter-offer by reason of the statement made
on behalf of the two plaintiffs Prabir Kumar Das and Pradeep Kumar Das in the
meeting convened 611 by the receiver on 12.1.1983 that the appellant's offer
should be accepted subject to the condition that he will purchase the property
subject to the pending litigation and that there should have been a fresh
acceptance by the appellant thereafter, and he has not done so and therefore
there is no concluded contract. There is no such conditional acceptance as the
condition required by Prabir Kumar Das and Pradeep Kumar Das has not been
specially communicated to the appellant by the official Receiver for his
acceptance.
Therefore there is no merit in this
contention of Mr. Sanghi.
Mr. Sanghi next submitted that respondents 1
to 4 have offered Rs. 5,00,000 for the disputed property and that since the
owners of the property stand to gain a sum of Rs. 1,00,000 by accepting that
offer, the order for sale of the property made by the learned Judges of the
Division Bench in favour of the respondents 1 to 4 and their 34 nominees should
be confirmed.
Respondents 1 to 4 are trespassers in respect
of the property which is in custoda legis and they are in contempt of the
Court. They cannot be allowed to continue to be in contempt and urge it as a
ground for obtaining the benefit of the sale of the property in their favour.
If the appellant has not complied with any condition it may be a ground for the
owners and the Official Receiver not to accept his offer and refuse to sell the
property to him and not for respondents 1 to 4 to raise any objection. The
offer has been accepted rightly or wrongly more than once and therefore the
appellant may have a right to sue for specific performance of the contract on
the basis of that acceptance by the Official Receiver given with the approval
of the parties. The same is the position in regard to the delay of about a
month in paying the balance of Rs. 3,00,000 by the appellant. In Kayjay
Industries (P) Ltd. v. Asnew Drums (P) Ltd. & Others it has been held that
the executing court had committed no material irregularity in the conduct of
the sale in accepting the highest offer and concluding the sale at Rs.
11,50,000 though the market value of the property may be over Rs. 17,00,000.
Jibon Krishna Mukherjee v. New Bheerbhum Coal Co. Ltd. & Anr. it has been
held that the sale held by the Receiver appointed by the Court is not governed
by the provisions of Order 21 rule 89 of the Code of Civil Procedure which
enables the persons specified in sub-rule 1 to have the sale held in execution 612
proceedings set aside on the two conditions therein mentioned being satisfied,
namely, as regards the deposit of poundage, balance of decree amount due etc.
In that case, as in the present case, the Receiver was given liberty to sell
the property by private treaty or by public auction. In Tarinikamal Pandit
& Others v. Prafulla Kumar Chatterjee we find the following observation :
"The procedure envisaged for sale
generally and sale of an immovable property under Order 21 is sale by public
auction. Sale by a Court through the Receiver appointed by Court is not
contemplated under these provisions.....A Receiver is appointed under Order 40
Rule 1 and a property can be sold by the Receiver on the direction of the Court
even by private negotiation." In the present case the property has been
agreed to be sold by private treaty and as required by the order made for the
purpose the approval of the parties has been obtained by the Official Receiver
who has been authorised to sell the property either by public auction or by
private treaty. The Court does not come into the picture in such a case and
there is no need for the Court to approve or confirm such sale. The parties who
are sui juris must be deemed to have known their interest best when they chose
to approve the sale of the property for Rs. 4,00,000 in favour of the appellant
not withstanding the fact that respondents 1 to 4 had offered to purchase the
property for Rs. 5,00,000 therefore, in my view the learned Judges of the
Division Bench had no right or justification to alter or modify the earlier
order made for the sale of the property by even private treaty, which had
become final, or to hold that subsequent offer made by respondents 1 to 4 to
purchase the property for Rs. 500,000 should be accepted merely because it
appears to be advantageous to the owners of the property in the name of social
justice. I am unable to persuade myself to hold that the benefit claimed on
behalf of respondents 1 to 4-I would not call it a right, for there is no
corresponding obligation-can be equated with or even brought anywhere near the
social justice mentioned in the preamble of our Constitution.
For these reasons, I am of the opinion that
the learned Judges of the Division Bench were not right in interfering with the
well considered order of the learned Single Judge Monjula Bose, J. by 613 their
order made in the application of respondents 1 to 4 for a mere interim order
pending consideration of the appeal preferred by them against that order of the
learned Single Judge dated 18.7.1983 in the manner done by them which has
rendered the main appeal itself redundant and wholly unnecessary as stated
above. The impugned order of the learned Judges of the Division Bench which
purports to stand on the fragile and imaginary prop of social justice has no
legs in law to stand and cannot be allowed in law to stand.
I would, therefore, allow the appeal and set
aside the order of learned Judges of the Division Bench and restore that of the
learned Single Judge dated 18.7.1983 with costs quantified at Rs. 3,000 and
payable by respondents 1 to 4.
SABYASACHI MUKHARJI, J, With respect I agree
with the order proposed by Brother Fazal Ali. In view, however, of the question
posed in this case, I would like to recapitulate the facts as I view these and
to state the principles upon which I would like to rest my concurrence with the
order proposed. Though the controversy arises in a long pending litigation, the
question before this Court lies within a short compass.
Premises No. 7, Duffers Lane, Howrah,
comprising of about six bighas of land is nearabout Calcutta. It formed part of
the estate of one late Radha Kanta Das, since deceased. The premises is
hereinafter called "the disputed premises". Suit No. 2024 of 1952 was
filed in the High Court of Calcutta on May 29, 1952 by one Prasad Nath Das
claiming a decree for construction of the will and testament of the said Radha
Kanta Das since deceased and for declaration that the purported will dated May
22, 1952 executed by one Jitendra Kumar Das, since deceased in respect, inter
alia, of the disputed premises was invalid, void and for other reliefs. The
Official Receiver was appointed receiver over certain properties belonging to
or alleged to have belonged to that estate including the disputed premises on
or about August 11, 1953. Some of the parties to the suit, namely respondents
Nos. 13, 14 and 15 to this appeal took out an application for granting leave to
the Officer Receiver to sell the disputed premises, as some of the parties
required immediate funds. An order was passed on October 11, 1982 by a learned
Single Judge of the High Court directing the Official Receiver to sell the
disputed premises either by a public auction or private treaty to the highest offered
subject to a reserved price of Rs. 3,50,000 and the order further directed that
"in the event the property is sold by private treaty, the Official
Receiver, High Court, Calcutta, would call a meeting of the parties and obtain
their approval to such sale by private treaty. The provisional allottees or any
other party to 614 the suit would be entitled to bring intending purchasers for
the same." On December 20, 1982 by a letter, an offer was made to the
Official Receiver for purchase of the said premises for Rs. 4,00,000 on behalf
of the present appellant. The said letter contained the following :- "We
make an offer for purchase of the above property for Rs. 4,00,000 (Rupees four
lacs) subject to the Vendors' making out a good and marketable title free from
encumbrances." A Bank draft for Rs. 1,00,000 in favour of the Official
Receiver was also sent along with it. At a meeting held on Jan. 12, 1983, the
said offer along with two other offers were considered by the representatives
and advocates appearing for the different parties in the suit. It appears that
parties more or less agreed that the offer received on behalf of the appellant
was best but one Shri B.N. Mitra, representing his client observed that it
might be accepted subject to the appellant's agreeing "to purchase the
same land with pending litigation in respect of the said property." It may
be mentioned that the terms in which the Official Receiver intimated by letter
dated January 13, 1983 addressed by the Official Receiver to the advocate of
the present appellant contained the following :- "This is to inform you
that your client's offer of Rs. 4,00,000 for the purchase of the above premises
has been accepted.
You are, therefore, requested to advise your
client to deposit the balance sum of Rs. 3,00,000 at an early date." It
would be relevant to bear in mind that it was not communicated that the
acceptance of the offer was subject to the appellant's agreeing to purchase the
land with pending litigation in respect of the said land. The offer of the
appellant which had been originally communicated did not contain any condition
that the offer to purchase was subject to pending litigation. It was,
therefore, urged before us that there was no acceptance of the offer by letter
dated January 13, 1983 because the acceptance was with a condition. It was
urged that it was really a counter offer.
The Division Bench of the High Court came to
the conclusion that there was no concluded contract. Such a view is a view
which is possible to take, and as such the Division Bench proceeded on the
basis that there was no concluded 615 bargain between the appellant and the
parties represented by the receiver. It may, however, be mentioned that in
February, 1983, it is stated, certain documents were forwarded to the
appellant's advocate. It may be mentioned that in the letter referred to
hereinbefore dated December 20, 1982, the appellant had also stipulated that
the sale be completed within six months or such further extended time as may be
agreed upon in one or more lots by one or more sale deeds in favour of the
appellant or his nominee or nominees.
The letter dated January 13, 1983 by the
Official Receiver also requested the appellant to deposit the balance sum at an
early date. It may be mentioned that the said balance sum was deposited after
August, 1983 after the special leave was granted in this matter by this Court.
It is also significant to bear in mind that though the application for sale of
the property in question was made because the parties were in urgent need of
money, there does not appear to be any document or letter asking the appellant
for the money.
It is alleged that in February, 1983, fire
broke out in the factory adjacent to the premises in question and fire brigade
men had entered into the premises by breaking a portion of the well to get
access to the pond inside the disputed premises. It is the case of the
appellant that on March 14, 1983, the respondents nos. 1 to 4 along with some
miscreants had forcibly entered into the disputed premises.
This, however, is disputed by the contesting
respondents nos. 1 to 4 herein, out of whose application to the High Court for
intervention, the order impugned was passed by the Division Bench and which is
the subject matter of this special leave, they in their application asserted
that they had come to know about the appointment of the Official Receiver from
the police and they further came to know about the offer made by the appellant
for the purchase of the premises in dispute. The said respondent alleged that
they along with 38 families with the leave and licence of one of the co-owners
were residing in the premises in question since 1975 and had constructed pucca
huts and structures and in spite of the same, according to the said
respondents, the appellant did not inform the court of the said fact before
obtaining police help against them. The said respondents claimed that they were
licencees under the original owners, Smt. Malati Das and Jitendra Nath Das, in
certain specified plots mentioned in their application. They further alleged
that on May 2, 1983, they had come to know that the appellant had obtained
ex-parte order from the Sub- Divisional Magistrate (Executive) directing the
Superintendent of Police to restore possession of the premises in dispute by
arranging police help. The applicants had 616 filed an application before the
learned Sub-Divisional Magistrate under Section 145 of the Code of Criminal
Procedure with a prayer to recall the ex-parte order mentioned hereinbefore and
to call for a report from the local police regarding possession of the said
applicants in the said disputed premises. The Sub-Divisional Magistrate, it was
alleged, did not pass any order and was pleased to direct to put up the said
application on May 7, 1983. Though no formal order was passed the said
application was kept on record. The applicants further alleged that coming to
know that certain other order might be passed, the applicants moved a revision
application under the Criminal Revisional jurisdiction before the High Court
and thereafter had obtained the stay of the order of April 26, 1983 passed by
the learned Sub-Divisional Magistrate. The said application under Section 145
of the Code of Criminal Procedure is pending.
The pendency of the proceedings under Section
145 of Code of Criminal Procedure and order, if any, passed thereon does not in
any way affect the title of the parties to the disputed premises though it
reflects the factum of possession. See the decision of this Court in the case
of Bhinka and Others v. Charan Singh.
It is in this background that the applicants
in their application before the learned Single Judge of the High Court prayed
that their claim to be in possession and their right to be in possession should
be determined and as such they should be added as defendants to the suit and as
a consequence, the order for police help granted by the High Court in ejecting
the applicants should be recalled. The said application came up to be heard by
a learned Single Judge of the High Court and by an order passed and judgment
delivered, the learned Judge rejected the application holding that the
respondents nos. 1 to 4 being the applicants therein were trespassers and had
no right to be in possession of the premises after the Official Receiver had
been appointed receiver and further it was held that the parties had no right
to grant any leave or licence after the property came under the custody of the
Official Receiver as receiver appointed in the suit. The learned Judge further
held that a sale had been concluded in favour of the present appellant and
therefore though noting that the respondents nos. 1 to 4 being the applicants
therein had offered to pay a sum of Rs. 1,00,000 more for the purchase of the
premises in dispute, the learned Judge rejected the said offer and dismissed
their application.
617 As mentioned hereinbefore there was an
appeal from this decision to the Division Bench of the High Court. The Division
Bench was of the view that the offer made on behalf of the respondents nos. 1
to 4 should be accepted. The Division Bench took the view that there was no
concluded contract for sale in favour of the present appellant. The Division
Bench was of the view that there was not then any completed sale. The Division
Bench further noted as follows :- "On the other hand, we find that 38 families
have been residing in the disputed land. It is submitted by Mr. Bhabra that
these persons are all trespassers without any vestige of title. It is however,
the case of the petitioners that they have been residing in the disputed land
by making certain structures under the leave and licence of two of the owners
of the said premises although one of the owners, Smt. Malati Das, who is
alleged to have granted the licence, has denied granting of such licence. If
the disputed land is sold to the respondent No. 2 then 38 families who have
been residing therein would be evicted with police help. In our opinion, the
Court should do social justice and in doing such justice any technicality of
law will not stand in its way. Social Justice requires that the disputed land
should be sold to the petitioners and others residing on the disputed land.
Moreover, the petitioners have offered to pay the price of Rs. 5,00,000 that is
to say Rs. 1,00,000 more than the offer of the respondent No. 2." The
Division Bench directed that Rs. 1,25,000 should be paid by present respondents
1 to 4 on or before August 1, 1983 which it may be noted has been paid and
thereafter pay the balance sum of Rs. 3,75,000 by August 29, 1983 which sum
however could not be paid because in the meantime special leave to appeal was
granted by this Court and a stay had been obtained. It may be mentioned that
the balance of the consideration of Rs. 3 lacs offered by the present appellant
has been paid only after the special leave had been obtained from this Court.
The Division Bench further directed that in case payments were made within the
time, the property in question should be conveyed to the persons named in the
said order. It was further directed that in case the respondents 1 to 4
committed default in paying a sum of Rs. 1,25,000 or 3,75,000 within the
stipulated time, they said order would stand vacated and the order of 618
learned Single Judge would stand confirmed i.e. sale would be made to the
appellant.
It is the validity and the propriety of the
said order which is impugned in this appeal. The question mainly is whether
there was a concluded and confirmed sale in favour of the appellant and if not
could the Court direct the disputed premises to be conveyed to respondents nos.
1 to 4 for the benefit of 38 families relying on social justice.
On the question whether in the facts and
circumstances that have happened, the Court could pass the order it had done,
some contentions were urged whether the sale in question was a court sale or a
private sale or a sale by the receiver and whether confirmation of the court
was required for such a sale. Some of the decisions cited at the Bar on this
point have been noted by my Brother. In the view I have taken it is not
necessary in this case to decide whether a confirmation of sale by the court in
the circumstances under which the property was directed to be sold was
necessary or not, though it may be sufficient to note that there was some
divergence of opinion on this point. On the nature of the possession by the receiver
and how interference with such possession should be dealt with by law have also
been noted in the observations in Halsbury's Law of England, 4th Ed., Volume 39
pages 451 and 452, paragraphs 890 and 891. See also Kerr On Receivers-15th
Edition page 155 and also Kerr On Receivers-16th Edition pages 121 and 122. It
is well- settled that when the property is in the custody of a receiver
appointed by the court, the property is in the custody of the court and
interference with such possession should not be encouraged and no party can
acquire any title or right by coming in or over the property which is in the
possession of the receiver without leave or consent of the receiver or sanction
of the court. It was urged that in as much as no such leave had been obtained
by the respondents nos. 1 to 4, possession, if any, of the said respondents or
entry into the land by the said respondents at a time when indisputably there
was receiver was illegal. In view of the facts that have happened and in the
light of the controversy before us now, in my opinion, it would be futile to
determine at this stage whether the entry of the respondents nos. 1 to 4 was
legal or illegal. It may be mentioned, however, that so long as proceedings
under Section 145 of Code of Criminal Procedure were pending before the
appropriate court, without any adjudication of the respondents nos.
619 1 to 4's right to be in possession and
directing that they be physically ejected by police help without hearing them
or without notice to them is not a correct legal position to take for court of
law administering justice. But it is not necessary for the purpose of this
appeal to express any final opinion on that.
It appears in the background of the facts and
circumstances of the case that the Division Bench took the view that there was
no concluded contract of sale in favour of the appellant and it appears to us
that such a view was a possible view to be taken in view of the facts I have
mentioned and if that is so, such a conclusion cannot and should not be
interfered with in appeal under Article 136 of the Constitution. Assuming even
that though not legally but as a reality of fact, the respondents no 1 to 4
were and are in possession of the dispute premises, they want to purchase the
premises by paying more than the offer then made, the offer made by the
appellant to purchase the premises in dispute seems to be rather low in the
context of facts and circumstances prevailing in such areas nearabout Calcutta.
The area comprises of about six bighas i.e. about 120 cottahs of land. It has
been suggested in one of the affidavit on behalf of respondents no 1 to 4 that
the prices prevalent in those areas are about Rs. 14,000 per cottah. Therefore
it was suggested that in the transaction between the appellant and receiver or
with the parties, there is more than what meets the eye. We, however, need not
speculate on the same. The facts on which I would like to rest my decision are:
(1) there is not a concluded contract in favour of the appellant. This view has
been accepted by the Division Bench. It is a possible view. This view should
not be interfered within appeal under article 136 of the Constitution; and (2)
the fact is that the respondents 1 to 4 are in possession with large number of
their families. The original entry might be, if their version is rejected,
illegal and without the authority of the court as no leave was obtained but
their possession is a reality. Illegitimacy of entry does not debar them from
offering a higher price in purchasing a property, contract for sale in respect
of which has not yet been concluded, and (3) the property is in custodia legis.
Though the court directed the receiver to sell, as the sale has not been
concluded, the court retains its power to direct its officer to sell to such
other person the transaction of which will apparently benefit the parties as
appearing from the facts on record or as from the facts which meet the eye. (4)
The factor that large number of people are in possession with their families
and conclusion of sale 620 to them would cause non-interference with their
continuance are factors which the court can and should take into consideration
in deciding the controversy in this case. (5) There has not indeed been any
proper adjudication of the right of the respondents nos. 1 to 4 to be in
possession of the premises in question and even if their entry was tainted with
illegality, it is not of such a magnitude, in view of subsequent facts that
because of illegitimate entry, they will be deprived of the right to bargain on
proper terms to purchase the property which is in the custody of the court.
If there has not been any proper sanction of
the court, this is only a procedural irregularity and as is well-settled that
rules of procedures are Hand Maids of justice not their mistresses.
The appellant in this appeal poses a question
whether the concept of social justice empowers the court to grant relief in
favour of persons who interfere with the admitted possession of the receiver at
the expense of the bona fide purchaser at a court sale. As I see the facts, the
basis upon which this question is posed namely, that the appellant is a bona
fide purchaser of the property is not correct in the light of the view taken by
the Division Bench. There had not been, any concluded contract of sale when the
Division Bench passed the order.
The concept of social justice is not foreign
to legal justice or social well-being or benefit to the community rooted in the
concept of justice in the 20th century. The challenge of social justice as I
see it, is primarily a challenge to the society at large more than to the court
immediately. Social justice is one of the aspirations of our Constitution. But
the courts, we must remember are pledged to administer justice as by law
established. In formulating the concept of justice, however, the inarticulate
factor that large number of human beings should not be dislodged from their
possession if it is otherwise possible to do so cannot but be a factor which
must and should influence the minds of judges in the facts of this case. It is
true that the persons who were alleged to be in possession are with unclean
hands but they came for shelter and built in hutments. They do not want to
legitimise their stay by illegal entry, they want to be rehabilitated at
competitive bargain price. Should they be denied that opportunity on the ground
of their original illegitimacy ? I am definitely of the opinion that in these
circumstances they should not be so denied rehabilitation. In administering
justice-justice according to law in this case, no law is breached in the view
taken 621 by the Division Bench of the Calcutta High Court. The American Bar
Association in its report in 1964 had observed that jurisprudence has shifted
away from finespun technicalities and abstract rules to practical justice to a
recognition of human beings, as the most distinctive and important feature of
the universe which confronts our senses, and of the function of law as the
historic means of guaranteeing that preeminence. (See The Fourteenth Amendment
Centennial Volume Edited by Bernard Schwartz. page 10). I therefore
respectfully agree with Brother Fazal Ali when he says that in administering
justice-social or legal, jurisprudence has shifted away from finespun
technicalities and abstract rules to recognition of human beings as human
beings.
It is true that original entry was illegal
and we are sometimes urged "to do a great right, do a little wrong"
(See the plea of Bassanio in Merchant of Venice). In this case, however, the
court has done no legal wrong at all. The court has only ignored the
non-compliance of not seeking court's leave for the alleged grant of licence.
In administering justice, or social legal, we
do well to bear in mind the words of Justice Holmes "The life of the law
has not been logic: it has been experience. The felt necessities of the time,
the prevalent moral and political theories, intuitions of public policy, avowed
or unconscious, even the prejudices which judges share with their fellow-men,
have had a good deal more to do than the syllogism in determining the rules by
which men should be governed The law embodies the story of a nation's
development through many centuries, and it cannot be dealt with as if it
contained only the axioms and corollaries of a book of mathematics. In order to
know what it is, we must know what it has been, and what it tends to become. We
must alternately consult history and existing theories of legislation. But the
most difficult labour will be to understand the combination of the two into new
products at every stage. The substance of the law at any given time pretty
nearly corresponds, so far as it goes, with what is then understood to be
convenient; but its form and machinery, and the degree to which it is able to
work out desired results, depend very much upon its past." (The Common Law
by Oliver Wendell Holmes-Edited by Mark DeWolfe Howe-Lecture I-page 1).
The felt necessities of time and in this case
the convenience of the situation and the need for adjusting the rights of a larger
number 622 of people without deprivation of any accrued right of anybody would
be justice according to law. Before we reject social justice as something alien
to legal justice, we should remember that a meaningful definition of the rule
of law must be based on the realities of contemporary societies and the
realities of the contemporary societies are-men are in acute shortage of living
accommodation and if they are prepared to bargain and rehabilitate themselves
on competitive terms, they should be encouraged and no technical rules should
stand in their way. That would be justice `by highways' and not infiltration
`by bye-lanes'.
In that view of the matter, I hold that there
is no merit in this appeal. I agree with the order proposed by Brother Fazal Ali
and the reasons given by him.
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