Decided on August 28,1996



B.M.Mitra, J. - (1.)IN this wit application a writ of Mandamus is being prayed for recording the name of the petitioner as Bargadar in respect of the land in question. This case has a background which is different from ordinary case and it apparently appears to be outside the pale of the ambit of the relationship of owner and Bargadar which is a relationship in terms of the statute between private individuals. Here, in this case, the interesting departure from the usual practice is that a Deed of INdenture was entered in between the State of West Bengal as a Donor and the other party figuring in the said Deed of INstrument executed in the month of November, 1990 as a Donee. The gift made by the State is for rehabilitation of the refugees from Bangladesh and the said gift is subject to stipulation of the embargo whereby the Donee would not be entitled to alienate or transfer in any way the land in question. The spirit of the execution of the said Deed of INdenture of Gift is for personal user of the Donee with a view to rehabilitate the Donee-so that the Donee may resurrect his career by prosecuting his livelihood through agriculture or by construction of homestead meant for the use of the same as a homestead one. The point which looms large for consideration is that on thereface of an embargo lingering from the Deed of INstrument of the Gift whether the Donee is authorised to alienate the physical possession of the land in question by way of giving the same by way of barga. If the same is allowed, it will be some sort of further delegation of the purpose by the Donee for which the Donee is not authorised to delegate as that may arrogate into the very purpose of the fibres of the foundation of the Deed of INstrument of the gift. It the State is the owner of the property and the lien of ownership continues, subject to limitation that no transfer or alienation in any form is contemplated, then-the-transferee-Donor is not further authorised to alienate physical possession of the same during the harvesting season. The operation Barga is a device, adopted by the State Government in its legislative wisdom to regulate and to usher in an agrarian reform in order to modulate the relationship of transactions between the raiyat and/or owner and the tiller of the soil who is clothed with the protection of statutory safeguard of Bargadar. Here, if this High Court, by way of issuance of a writ of Mandamus, allows the name of the writ petitioner to be recorded as a Bargadar under the Donee, then it shall cause an evaporation or the erasement of a stipulation of restriction where alienation in any form is discarded which may be contrary to personal enjoyment. To divide personal enjoyment of a land whether in between any other transferee or Bargadar of a piece of land which is donated by the State. Keeping in view the plight of the Donee so that he can make personal benefit of the same for the considered opinion of this court he is not authorised to further delegate it and the entire chapter does not come into play and/or operation with regard to some such plots of land which are of special categories. An analogous reference may be made to that of "BHUDAN JAGYNA" ACT of 1962 where we find that as the donation is purpose oriented, nothing can be done deviating the very purpose of the donation. Therefore, this court is not in a position to accede to the submission and request of the learned Advocate appearing for the petitioner to be sympathetic for the course of sympathy is to be modulated provided it is permissible in law and in accordance with law and Statute. A Plain reading of the INstrument of Gift and the purpose behind it prompts this court to draw an inference that such lands are outside the categories which can be encumbered by creation of Barge which is valid and heritable and in The Statute.
(2.)ACCORDINGLY, this court, after giving its anxious consideration to the problem faced before It, is constrained to dismiss the application because relief cannot be given in favour of the applicant. The writ petition thus stands dismissed on contest. Petition dismissed

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