SADHURAM BANSAL v. PULIN BEHARI SARKAR & ORS.

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

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

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

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

!he '.elt necessities of time and in this case the convenience of H s1tu~tion a11d the need for adjusting the rights of a larger number • ' 0

622 SUPREME COURT REPORTS . [1984) 3 S.C R :r A of people without deprivation of any accrued ~ight of anybody would be justice according to law. Before we raject social justice' as, some- thing" alien to legal justice, we should remember that a meaningful definition of the rule of law must be based on the realities of contem- porary societies and, the realities of the contemporary societies' are- men are in acute shortage of living accommodatio11 and if they are B prepared to bargain and rehabilitate ,themselves on competitive i .. terms, they should be encouraged and no technical rules should stand in their way. That would be justice 'by highways' and not frtfilt(ation 'by bye-lanes': ,, C fo·that view of the· matter, I hold that there is no merit in this appeal. I agree with the order proposed by Brother Fazal ,Ali and the rea~ons given by him.

N.V.K. Appeal dismissed r