What is Land Encroachment and How to Deal with it Legally?

From an unoccupied apartment in urban India to acres of agricultural land in the villages, encroaching of land and property is one of the biggest challenges in front of the government and private property owners. In the last few years, India's property and land laws have become strict due to an increase in land grabbing, trespassing, and land encroachment cases throughout the country. However, there is still a lot of confusion about the laws and rights of the landowner. Let us understand the critical aspects of land encroachment and the different legal options that you can use to end such illegal acts.

What is Land Encroachment?

Land encroachment is the unauthorised occupation or use of land or property by someone without legal rights or permission. It's common in unused agricultural, residential, or commercial areas, especially when owners are absent. Understanding legal procedures for addressing encroachment is crucial for property owners.  

Illegal Encroachment Act & Punishment 

Land grabbing, trespassing, and land encroachment is a legal offence. According to Section 441 of the IPC (Indian Penal Code), 1860, an action can be termed encroachment when a person trespasses or enters the land (or any property) owned by another without seeking legal permission to do so. In many cases, the encroacher/land grabber can use the land to develop illegal structures and occupy it without the attention of the actual landowner(s). These acts are strictly prohibited by law and can face imprisonment or/and monetary fine as per the encroachment of land act. 

One of the most common forms of encroachment of property today is when the neighbour extends a part of their building, wall, garden, fence, etc., and enter the land owned by someone else. Situations such as encroachment of land by neighbours can cause a considerable problem while selling the land. Thus, the owner needs to resolve the situation legally as soon as it occurs.

Encroachment of Government Land

The state and central Governments in India own a vast amount of land that may remain undeveloped for many years or even decades. Ever since the 1950s, there have been many cases where someone has participated in encroachment on government land and built illegal construction on the land, hoping that the Government laws would change in the future and the land would be given to the encroacher. But, recent Supreme Court (SC) judgments dealing with encroachers wanting regularizations have been strict, and the law is firmly against government land encroachment. 

Forest Land Encroachment 

In recent years, tremendous attention has been paid to the encroachment of land belonging to forest areas. The forest encroachment definition is complex as the laws allow forest land to be used for different purposes, only under certain circumstances. The National Forest Policy 1988 was designed to ensure that no forest land encroachment occurs, especially when people convert forest land into agricultural land for cultivation. After multiple amendments, the current encroachment on government land case laws states that forest land encroachment cases where the land encroached before 24.10.1980 may be regularized and legally handed over to the persons currently using the land. However, the forest land encroachment that occurred after the date cannot be regularized under any circumstances. 

Difference Between Land Encroachment and Trespassing

Nature of the Offense

• Land Encroachment: Criminal offence involving the unauthorised occupation of someone else's land.
• Trespassing: Civil offence characterised by unauthorised entry onto someone else's property.

Legal Consequences

• Land Encroachment: Potential loss of property rights for the landowner.
• Trespassing: This may lead to a lawsuit against the intruder.

Response and Legal Action

• Land Encroachment: The landowner may initiate legal proceedings against the occupier.
• Trespassing: The landowner can file a police complaint against the intruder.

What are the documents required to prove ownership of land?

The following documents are required to prove ownership of property in case of disputes and legal proceedings-

• Title deed
• Mutation certificate
• Purchase agreement 
• Utility bills in your name

How to Deal with Land Encroachment Legally? 

It's vital for distant property owners to know legal ways to tackle land encroachment. Owners can legally defend their property, sometimes using force. Various legal options are available for dealing with such encroachments.

1. Permanent or Temporary Injunction 

In layman's words, an injunction is a court order which forces the person(s) to either execute an action or refrain from doing an act. As the name suggests, a permanent injunction is treated as the final order that ensures that the persons entirely refrain from the encroachment. On the other hand, a temporary Injunction also restricts encroachment on public land but only till a specific time frame and stops the encroachment temporarily.

• The property owner can file an application in the court of law referring to the Code of Civil Procedure under Order 39, Rule 1 and 2, to get a temporary Injunction against any land encroachment.
• After examining the application, the court will ask the defendant to file a reply to the Injunction- then the court decides on the acceptance or rejection of the application.  
• If the court deems the Injunction valid after analysing the situation, it can order a temporary injunction on the property in question.  

2. Ex-parte Injunction 

The justice system in India allows both parties equal opportunity to be heard and put their point across. However, there are certain exceptional situations in which the court can order an Injunction without hearing both the parties in question. In most cases, an ex-parte Injunction is passed if the defendant refuses to reply to the application or if the potential reply will lead to a considerable loss for the application.

3. Claim Damages 

The law allows the property owner to claim certain damages occurring due to land grabbing or encroachment. Damage is a term used for compensation that the defendant may be ordered to pay to the plaintiff for the landowners' losses. When it comes to trespassing or land encroachment, the owner can claim compensation for physical damage (damage to the property or injuries to the owner) and mental loss suffered.  

Letter of Complaint Against Land Encroachment

The first thing you should do if you discover that your land or property has been encroached upon is to send a letter of complaint to the authorities. Here is an example of how to format a letter of complaint regarding land encroachment:

From:

------ (your name)

-----(Full contact Address)

----- (your contact phone/mobile No.)

Date :___________

To,

The Land and Estate Encroachment dept.

Municipal Corporation(Name of your Local Municipal Corpn.)

Address (Local Address in Full)

Sub. : Legal action against encroachment/ illegal ownership of Municipal Corporation property and harassment to others by Mr A (mention the name and address of the encroacher)

Sir/ Madam,

I, the undersigned Smt./Shri.___ (your name) residing at ______(your address) would like to submit my burning problems as below and request your help to overcome the harassment faced by me.

For the last many years, I used to park my vehicle on one side of our Society's internal road where some extra space is there, which is the property of the Municipal Corporation. Now Mr A______ (name of the person) residing at above subject address encroached that extra space and therefore I am facing problems to park my vehicle.

Afterwards, I tried to remind him that the space he encroached is the corporation's area and he let me park the vehicle on one side, as there is no other alternative for parking. However, he is not ready to listen to me and even other members of society who are also trying to convince him. Now he has begun harassing me by damaging my vehicle while parking there.

In this situation, I request the concerned authority to please initiate legal action against Mr A to stop his illegal ownership claim/ remove the illegal occupancy of Municipal Corporation's property and thereby unnecessary harassment to others.

Hope you will do the needful favourably with an immediate effect, which will help to avoid other encroachments also in our area.

Thanking you,

---------(your signature)

---------(your full name)

How to Protect Land from Encroachment?

Here are a few suggestions that can lessen the likelihood of land encroachment because, as we all know, prevention is always preferable to treatment.

• If you are an NRI or reside distant from the property, provide a family friend or relative a Power of Attorney (PoA) with clear instructions.
• Set up a fence or board to surround the land.
• Hire someone who can take care of a property, akin to visiting the location frequently.
• By constructing a tiny concrete structure, you can retain a security guard or a tenant. Do not forget to properly document them. A lawyer is also an option you might use to prepare the paperwork.
• If you've kept a tenant, you need to go to the closest police station to get the verification done. In several cities nowadays, registering for a business is compulsory.
• Make a thorough tenant inquiry, and if you're a senior, you need to be very cautious.
• Periodically extend the lease agreement on the current terms.

Penalties Under the Land Encroachment Act

In addressing the issue of land encroachment, it is essential to understand the penalties imposed under the respective legal framework. Here's a breakdown of the consequences that violators might face:

• Legal Prosecution: Individuals found guilty of land encroachment may face legal action, leading to court trials and potential convictions.
• Monetary Fines: The law imposes fines on encroachers, which can vary depending on the severity and duration of the encroachment.
• Imprisonment: Serious cases of land encroachment can lead to imprisonment. The term length depends on the nature and extent of the encroachment.
• Demolition of Illegal Structures: Any unauthorised construction on encroached land is subject to demolition orders by the court.
• Compensation to Landowners: Encroachers might be ordered to pay compensation to the affected landowners for any losses or damages incurred due to the encroachment.
• Eviction Orders: Courts can issue eviction orders, compelling encroachers to vacate the illegally occupied land.
• Permanent Record: Convictions or legal actions taken against land encroachers become part of their permanent legal record, impacting future property dealings or legal matters.
• Community Service: In some cases, courts may order community service as a part of the penalty, especially in less severe instances of encroachment.

Andhra Pradesh Land Encroachment Act, 1905

The Andhra Pradesh Land Encroachment Act, 1905 is an important law that deals with land encroachment in the state of Andhra Pradesh. The act provides for the removal of encroachments on government land and the eviction of encroachers. The act also specifies the legal procedure for land encroachment and the penalties for violation of the act.

• The act defines land encroachment as the occupation of government land without legal authority.
• Any person who wishes to encroach upon government land must apply for encroachment of land to the concerned authority.
• The act provides for the removal of encroachments on government land and the eviction of encroachers.
• Any person who violates the provisions of the act is liable for a penalty, which may be a fine or imprisonment.

Bihar Land Encroachment Act, 1956

The Bihar Land Encroachment Act, 1956 is a law that deals with land encroachment in the state of Bihar. The act provides for the removal of encroachments on government land and the eviction of encroachers. The act also specifies the legal procedure for land encroachment and the penalties for violation of the act.

• The act defines land encroachment as the occupation of government land without legal authority.
• Any person who wishes to encroach upon government land must apply for encroachment of land to the concerned authority.
• The act provides for the removal of encroachments on government land and the eviction of encroachers.
• Any person who violates the provisions of the act is liable for a penalty, which may be a fine or imprisonment.

Haldwani Land Encroachment Case

The Haldwani Land Encroachment Case of 2022 is a recent example of a land encroachment issue in India. In this case, a group of people had encroached on a piece of government land in the Haldwani area of Uttarakhand state. The encroachers had built houses and other structures on the land and were living there for several years.

The issue came to light when the authorities received a complaint from the local residents. Upon investigation, it was found that the land was indeed a government property and that it had been encroached upon by the group of people. The encroachers were asked to vacate the land, but they refused to do so, leading to a legal battle.

The local authorities took the matter to the court, and after a prolonged legal battle, the encroachers were finally evicted from the land. The court also ordered the demolition of the illegal structures that had been built on the land.

The Haldwani Land Encroachment Case is significant because it highlights the problem of land encroachment in India. According to a report by the Ministry of Rural Development, about 20% of the land in India is under encroachment, which is a serious issue that needs to be addressed.

To prevent land encroachment, it is essential to have proper land survey records and strict enforcement of land ownership laws in India. In the case of the Haldwani Land Encroachment, the government used satellite imagery and drones to monitor land use and identify encroachments. The digitization of land records is another important step that can help in preventing land encroachment.

In case of land encroachment issues, it is important to follow the legal procedure for dealing with the issue. It involves obtaining a deed of sale of land or any other document that proves the ownership of the land, obtaining copies of the land survey records, and taking legal action to remove the encroachment.

Land encroachment is a commonly faced issue by many property owners in India. Thus, all landowners must be aware of the different legal options to curb such illegal acts. Therefore, excellent and qualified legal assistance is of utmost importance when fighting land encroachment, and you can easily find the required assistance by consulting the experts available at NoBroker. Just click on the link below this article, and our team will get in touch with you shortly. 

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