ENCROACHMENT LAWS IN INDIA by Udi Prakash

The Supreme Court on Thursday (17/06/21) refused to halt the demolition of about 10,000 unauthorized residential constructions encroaching into the ecologically fragile Aravali forest land near Lakarpur Khori village in Haryana. Forest encroachment results in forest degradation and forest degradation results in land degradation, and this leads to agricultural stagnation and even a lowering of productivity, which in turn promotes further encroachment and completes the vicious cycle.

Encroachment can be explained as a situation in real estate where a property owner violates the property rights of his neighbour by building on or extending a structure to the neighbour’s land or property. It can be intentional or by ignorance. An encroachment may be either on a privately owned land or on a government land.

According to law, Section 441 of Indian Penal Code (IPC), 1860 encroachment is when someone enters into or upon property in possession of another with intent to commit an offence or to threaten, insult or annoy any person in possession of such property, and illegitimately remains there. Penalty for the same is provided under Section 447, which includes imprisonment for up to 3 months or fine up to Rs. 500 or both.

Encroachment and Easement:

Encroachment and easement are two different terms and should not be confused with each other. Easement is the right of the owner of a property over the use of its neighbour’s property. Easements are agreed upon by both parties and compensation is often involved, whereas encroachment is an unauthorized use of the neighbour’s property.

Example: A and B are neighbours. Their houses are situated in such a way that to access public road A has to pass through B’s property. This right of way of A through B’s property is called easement.

Legal Remedies against Encroachment:

  1. The first step that an owner is required to take place is to file a suit against such person who has encroached or entered into the property without your permission and claiming almost equal rights of enjoyment in it; either by conversing verbally or by way of barricading.
  2. An injunction is the order of a court which demands a person to either perform an act or refrain from doing an act.
  3. Injunctions are broadly divided into two types, temporary and permanent.
    1. permanent injunction is passed as the final order restricting the defendant from doing any act.
    2. temporary injunction is an injunction which is passed by the court to make sure no further act is done related to that property or work temporarily.
  4. After the filing of the application by the owner, the court asks the defendant to file their reply.
  5. After examination of the reply and the matter as a whole, the court may either pass the temporary injunction or the permanent injunction.

Apart from the right and ownership of the party, the owner can also claim damages caused to him during the time the property was being misused by another person.

  1. Damages are a means through which a person is supposed to get approximately what he has lost.
  2. There are certain injuries for which no damage or compensation is granted for what is lost but certain injuries can be compensated by a certain amount of money.
  3. If a stranger has trespassed or encroached any part of your property, then he is liable to compensate you in the form of damages.
  4. The amount of damage depends upon the loss which you have suffered. Damages are given for both physical as well as mental losses suffered.
  5. Though a mental loss is difficult to calculate, therefore the court goes through the intensity of the case and for how long the owner has been deprived of his property.

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