IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1103 of 2010 1. UMASHANKAR PRASAD S/O SRI YOGENDRA PRASAD R/O VILL BANAULI, P.S.SURSAND, DISTT-SITAMARHI 2. DINANATH PRASAD S/O YOGENDRA PRASAD R/O VILL BANAULI, P.S.SURSAND, DISTT-SITAMARHI 3. BINDSHWAR BHAGAT S/O LATE BASDEO BHAGAT R/O VILL BANAULI, P.S.SURSAND,DISTT-SITAMARHI VERSUS 1. THE STATE OF BIHAR 2. THE COLLECTOR SITAMARHI 3. THE SUB DIVISIONAL OFFICER SITAMARHI 4. THE CIRCLE OFFICER SURSAND,DISTT-SITAMARHI 5. THE EXECUTIVE ENGINEER, WATER RESOURCES DEPARTMENT SITAMARHI ----------- 02 22.02.2010 By this writ application petitioners have challenged the action of the respondent-State trying to remove them from Plot Nos. 425 and 431 under Khata No.1010 in the village Banauli, P.S.-Sursand, District-Sitamarhi. They state that they had given some part of their land for an irrigation channel to be made as consequence of tube well sunk by the State for the benefit of the farmer of the area. In due course of time the tube well itself sunk and became useless for number of years. It is lying defunct. Petitioners have regained their lands. Their lands were neither transferred to the State nor acquired by the State. With permission of petitioners, the tube well department had made irrigation channel for farmer, which as noted above, has defunct several years back. Petitioners are threatened with eviction from this irrigation channel. In my view, unless the irrigation channel is to be restored and made functional immediately petitioners cannot be treated as an encroacher in any manner because it was their land - 2 - which has not been transferred legally to the State as yet. It has not been acquired by the State as yet and easement was permitted but once the tube well dried and became defunct exercise of the easement ceased entitling petitioners to regain possession. This is however not the end of the matter, because if the tube well/irrigation department starts the tube well for public, then if the irrigation channel is required, petitioner would have to be necessarily vacate the encroached area but not before that. With these observations, the writ application is disposed of. Trivedi (Navaniti Prasad Singh, J.)