Sanjay Kishan Kaul, J. - (1.) The right of pre-emption holds its origination to the advent of the Mohammedan rule, based on customs which came to be accepted in various courts largely located in the north of India. This law is stated to be largely absent in the south of India on account of the fact that it never formed a part of Hindu law in respect of property. However, this law came to be incorporated in various statutes, both, prior to the Constitution of India (for short 'the Constitution') coming into force, and even post that. (Bhau Ram v. Baij Nath Singh & Ors., 1962 AIR(SC) 1476) The constitutional validity of such laws of pre-emption came to be debated before the Constitution Bench of this Court, in Bhau Ram (supra) . There are different views expressed by the members of the Constitution Bench of five Judges, and also dependent on the various State legislations in this regard. Even though there were views expressed that this right of pre-emption is opposed to the principles of justice, equity and good conscience, it was felt that the reasonableness of these statutes has to be appreciated in the context of a society where there were certain privileged classes holding land and, thus, there may have been utility in allowing persons to prevent a stranger from acquiring property in an area which has been populated by a particular fraternity or class of people. This aspect was sought to be balanced with the constitutional scheme, prohibiting discrimination against citizens on the grounds of only religion, race, caste, sex, place of birth or any of them, under Article 15 of the Constitution, and the guarantees given to every citizen to acquire, hold and dispose of property, subject only to the test of reasonable restriction and the interest of general public.
(2.) With the passage of time, such laws of pre-emption, which existed in many States were abrogated, and it is only within a limited jurisdiction that it now prevails. One such enactment still in existence is the West Bengal Land Reforms Act, 1955 (hereinafter referred to as the 'said Act'), an enactment with which we are concerned, and it is this very right of pre-emption, and the manner of its application under the said act, which was debated before us. The Preamble of the said Act sets forth the tone as under: "An Act to reform the law relating to land tenure consequent on the vesting of all estates and of certain rights therein [and also to consolidate the law relating to land reforms] in the State"
(3.) The category of land holders are defined under Section 2 of the said Act, and the relevant two provisions are extracted hereinunder: "2. Definitions.-In this Act, unless there is anything repugnant in the subject or context,- .... .... .... .... .... .... (2) "bargadar" means a person who under the system generally known as adhi, barga or bhag cultivates the land of another person on condition of delivering a share of the produce of such land to that person; [and includes a person who under the system generally known as kisani [or by any other description] cultivates the land of another person on condition of receiving a share of the produce of such land from that person;] [, but does not include a person who is related to the owner of the land as- [Explanation.-A bargadar shall continue to be a bargadar until cultivation by him is lawfully terminated under this Act;]" .... .... .... .... .... .... "[(10) "raiyat" means a person or an institution holding land for any purpose whatsoever;]";