IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2525 of 2002 Surya Narayan Mandal, son of late Jhagaru Mandal, resident of Village- Englis, P.S. Farka, District- Bhagalpur. ..... Petitioner. Versus 1. The State of Bihar through the Commissioner -cum- Secretary, Animal Husbandry and Fishery Department, Government of Bihar, New Secretariat, Patna. 2. The District Fishery Officer –cum- Chief Executive Officer, Bhagalpur. 3. Matasayagivi Sahayoug Samiti Lailakh through its Secretary, Sakal Mandal, son of not known, P.S. Sabour, District- Bhagalpur. ...... Respondents. ----------- 04- 5.12.2008 Heard Mr. Bimlendu Mishra for the petitioner, and Mr. Rajendra Prasad, learned Additional Advocate General No.1 for respondent nos.1 and 2. None appears on behalf of respondent no.3 in spite of valid service of notice. This writ petition is directed against order No.1919, dated 30.9.2000 (Annexure-9), whereby the State Government has permitted its settlees to do fishing on the adjoining lands belonging to others if the water of the settled portions spill over. The respondents have placed on record their counter affidavit. 2. A brief resume of facts essential for the disposal of the writ petition may be indicated. The State of Bihar settled Khesra No.1, 2 appertaining to Khata No.386, covering an area of 186.50 acres, in favour of respondent no.3, for fishing rights. The State Government had thereafter issued the impugned order dated 30.9.2000 (Annexure-9), whereby it permitted its settlees to do fishing on the adjoining lands belonging to others, if water of the settled land spills over the adjoining lands. The petitioner is the owner of the adjoining plot nos.347, 348, 357 and 367. He complains before this Court that the impugned order results in encroachment of his property and is, therefore, bad in law. 3. The learned Additional Advocate General has supported the impugned order. 4. We have perused the materials on record and considered the submissions of learned counsel for the parties. It appears on a perusal of the impugned order that the respondent authorities have relied on the judgment dated 16.12.1966, passed in Criminal Revision No.874 of 1966 (Shrimati Kama Devi and three others Vs. Gopi Krishna Singh and two others). It appears to us that this is authorising trespass over the lands to which the State of Bihar has no title. This is violative of the petitioner’s right to enjoyment of his property and may also interfere 3 with his agricultural operations. Rainy season and the period thereafter is really the period for paddy transplantation. 5. The respondent authorities have completely misread the judgment of this Court in Criminal Revision No.874 of 1966. That was a case where the landlord had given the right of fishery on the adjoining lands belonging to himself (the landlord) during rainy season while making settlement for fishery with the second party. In other words, the landlord had the title of the lands settled in favour of the settlee and was also the owner of the adjoining lands where the rain water used to spill over. In view of the unity of title of the landlord he could permit trespass over of his lands, being one of the conditions of such settlement. The facts and circumstances of that case were fundamentally different from those of the present case. The State of Bihar is the owner of the lands settled in favour of respondent no.3, but is not the owner of the adjoining lands upon which the alleged trespass had been permitted by the impugned order. 6. The right of Eminent Domain does not cover a case of the present nature. I had the 4 occasion to explain the principles of Eminent Domain in my judgment reported in 2006 (1) P.L.J.R. 521 (Vijay Kumar Mandal and others Vs. The National Thermal Power Corporation Ltd. and others), paragraph 6 of which is reproduced hereinbelow for the facility of quick reference: “6... Nichols in his well-known treatise states that Eminent Domain is the sovereign right of the State to take over the citizen’s property without his consent but only if the public necessity or public interest demands it in which case the private interest should give way to the public purpose, and the State is bound to repair the losses of individuals at the public expense. In other words, it has been described as forced sale after appropriate compensation. The property of subjects is under the Eminent Control/Domain of the State, and the State in exercise of its sovereign powers can use the property and destroy, or alienate it, without consent of the owner but only for public purpose and after compensation to him.” It is obvious that, in exercise of its power of Eminent Domain over any property within its jurisdiction the title of which may belong to somebody else, the State may take it over provided it is so done for public purpose and after compensation to the owner. The impugned order is surely not in furtherance of public purpose and in fact promotes only the personal 5 interest of settlees. Furthermore, no compensation has been provided to the petitioner. Thirdly, it needs consideration whether or not the right of Eminent Domain can be exercised by the State in the absence of a legislation authorising it. 7. In the result, the writ petition is allowed and the impugned order dated 30.9.2000 (Annexure-9) is hereby set aside. (S K Katriar, J.) S.K.Pathak/