NARAYAN CHANDRA GHOSH Vs. SANAT KUMAR DAS

JUDGEMENT

(1.) This Rule was obtained against the appellate order dated March 19, 1974 in Misc. Appeal No. 127 of 1973 disallowing an application for pre-emption under Section 8 (1) of the West Bengal Land Reforms Act, 1955 (West Bengal Act X of 1956).

(2.) The facts in short are as follows. Opposite parties Nos, I and 2 purchased 11 dec, of land of dag No. 1887 of Mouza Bara Sangra, khatian No. 326 P. S. Sainthia, District Birbhum, by a registered kobala dated 15th June, 1968. The petitioners before are filed an application for pre-emption of the lands under the said kobala on the grouac that they were owners of the adjoining plots on the west. It may be mentioned that the opposite parties Nos. 1 and 2 an also the owners of adjoining plots situated on the south of the disputed plot. The application for pre-emption giving rise to Mist, Judicial Case No. 72 of 1972 was dismissed by the learned Munsif by order dated August 14, 1973 whereby the application for pre-emption was rejected. It was held relying on the decision in Bhau Ram v. Baijnath Singh, that the law of. pre-emption on ground of vicinage imposed an unreasonable restriction on the right to acquire, hold and dispose of property guaranteed under Article 19 (1) (f) of the Constitution and as such application for pre-emption was not maintainable. Against this decision the appeal referred to above was taken by the pre-emptor and the appellate court by the impugaed judgment held that Section 8 (1) of the West Bengal Land Reforms Act, 1955 providing for pre-emption on ground of vicinity was enacted with the intention of consolidation of agricultural holdings and accordingly it could not be said that the provisions are ultra vires Article 19 (1) (f) of the Constitution and that was also not the decision of !he Supreme Court in Bhau Ram's case which dealt with pre-emption of urban lands. The appellate court was further of the opinion that the purchaser opposite parties Nos. 1 and 2 had a longer boundary with the disputed plot than the petitioner-preemptors even to the naked eye. Accordingly this application for pre-emption in view of the second proviso to Sub-section (1) of Section 8 could not be allowed. In this view the appeal was allowed in respect of order for costs only and the application for pre-emption was dismissed modifying the order of costs. The pre-emptors have obtained this Rule against this order.

(3.) Mr. Rebati Nath Sarkar learned Advocate appearing for the opposite-parties raised a preliminary objection contending that the provisions of Section 8 (1) of the West Bengal Land Reforms Act amounted to an unreasonable restriction on the right to acquire, hold and dispose of property guaranteed under Article 19 (1) (f) of the Constitution and accordingly the provisions for preemption on the ground of vicinage was unconstitutional and he also relied on the decision in the case cited above. The decision in the above case was concerned with Rewa State Pre-emption Act, 1946 which applied not only to agricultural lands but also to urban property including house property. It was observed (p. 1482).