ALL YOU NEED TO KNOW ABOUT THE LAND ENCROACHMENT ACT
Land Encroachment
Encroachment is a situation where a person violates the property rights of the owner. It could mean putting up a structure in someone else’s property or land. Usually, vacant or unattended properties are easy targets for property encroachers. Encroachment is usually intentional, where a person chooses to violate the boundaries of the property owner’s property or land, knowingly.
Difference between land encroachment and trespassing
At times people confuse land encroachment with trespassing. However, these two are different terms. Encroachment is an act where a person uses another person’s property illegally. Whereas trespassing is entering someone’s property without or against a property owner’s consent. There are three kinds of trespassing:-
- Of person- When a person is restricted to do an activity which he previously did
- Of chattel- An owner is disturbed using their movable property
- Of property or land- A person enters a property or land of another person with the aim of possession.
Land Encroachment Act India
Section 441 of the Indian Penal Code (IPC), 1860 is applied to land and property encroachment. According to section 441, encroachment occurs when somebody tries to enter illegally into someone else’s property. This is done to commit an offence, threaten a person for possession of the property and stay there. On land encroachment, the penalty is provided under section 447 of IPC. If a person is found guilty, they will pay a Rs 550 fine and imprisonment for up to three months. In the following manner, law treats the encroachment:-
- Section 441 is also applicable on trespassing on private land, and it is an offence under section 442.
- The judiciary can either stop encroaching or restrain them under the Land Encroachment Act
- The judiciary can also ask to pay compensation for encroachment as per the Land Encroachment Act. Compensation is calculated based on present land value, and loss caused.
- To claim the damages, move the court as per Order 39 (rules 1, 2 and 3)
Penalties under the land encroachment act
Under section 447 of IPC related to the Land Encroachment Act, an encroacher will have to pay Rs 550 as a fine or/and face imprisonment for up to 3 months. The penalty will be decided according to the offence.
Dealing with encroachment of property in a mutual way
To deal with the land encroachment issues, the preferred way is to go by the measures enumerated in the Land Encroachment Act. Once can also go for a mutually agreed upon way for resolving the issue. Two methods are used to solve land encroachment issues. One is a mutual way, and another is a legal way. The mutual way is categorised further, which is as follows:-
- Mediation– Mediation is the easiest way to solve the encroachment problem. It will save time as well as money. All you need to carry is property paper to put your point across.
- Sell and divide– You can get expert guidance from someone, and if suggested, both encoracher and property owner can sell the property and divide the money.
- Sell a property– You can sell a property to an encroacher if interested. This way, encroachers get the legal right of a property.
- Give on rent– If an encroacher wants the property for a certain period and does not want legal ownership, you can give property on rent. You can do this in exchange for money until legal formalities are completed.
States across India have rolled out their own Land Encroachment Act. A property owner should know how to tackle the land encroachment case legally if such a situation arises. Indian law allows property owners to defend their property against an encroacher. Let’s understand the legal ways available under the Land Encroachment Act which can be used to handle encroachment cases:
- Permanent or temporary injunction– An injunction is a legal term used for an official order from a court as per the Land Encroachment Act. In the land encroachment case, the permanent injunction is an order where the court forbids encroachers to use the property entirely. At the same time, a temporary injunction is when the court refrains encroachers to use the property for some time.
- A property owner can file a case against encroachers against order 39, Rule 1 and 2 of the Land Encroachment Act.
- After this, the application will be examined, and then a reply has to be filed. Based on the response, the court rejects/ accepts the application.
- Ex-parte injunction– The justice system of India passes an ex-parte injunction if only one party replies. In this case, the court does not wait for the other party’s response.
· Sell and divide If an encroacher refuses to vacate the property, then, the parties can sell the property and divide the money, depending on the share. Expert guidance is usually sought in such cases.
Example of encroachment
One of your neighbours renovating their home in a way that a part of their property extends into your area, is an example of encroachment. This could be a balcony area that encroaches into your parking space or terrace. It could also be an extension of any other area over your terrace, which may or may not hinder your ventilation.
