Can encroachers be removed?

Jan 19 2013, 09:08 IST
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SummaryHe locked up his ancestral house in Kolkata with plans to renovate it subsequently and give it out on rent

Abhijit Biswas, a software engineer living in the US for the past few decades decided to take his mother along with him for better medical attention. He locked up his ancestral house in Kolkata with plans to renovate it subsequently and give it out on rent. A few months later when he came back to India for getting the renovation work done, to his surprise the house had been turned into a club house by local goons. This is a common situation for many NRIs who are unable to physically look after their properties back home.

How it takes place

Local mafia can encroach into vacant property and may even create documents to prove their rights to it. The local revenue authorities can also be bribed to help their cause. When challenged, these people may even resort to violence in dissuading the real owner from attempting repossession.

Evicting such people is not easy due to two reasons. Firstly such elements are usually well connected to local thugs and politicians. Secondly the tenancy laws in India have provisions to protect the person in possession even if it is unauthorised.

Preventive Plan

A NRI who is away for long must ensure that the property back home is safeguarded to prevent a situation where a tiresome legal process is required. Here are a few steps that should be undertaken:

Documentation: The moment one gets the ownership of a property one should apply for mutation and arrange all other requisite papers such as the sale agreement, title deeds etc. Additionally, the owner has to ensure that the municipal taxes, water bills and electricity dues are paid on time the receipts kept secure.

Public Notification: In case the property has been inherited or bequeathed, then the new owner must put up notification to the same effect in a local newspaper and keep copies for future requirement.

Fencing/ Board: In case of a vacant plot it is advisable to construct a boundary wall and put up a notice board stating the ownership and right to property. This not only physically protects from encroachment but also makes it difficult for unscrupulous elements to sell off the property to a third party by creating forged documents.

Tenancy: In case of giving the house on rent one needs to do a proper verification of the tenant and create a sound agreement with provisions for renewal and termination. Where required even a police registration of the tenant is a good measure to ensure safety.

Professional Help: There are many companies which provide services such as looking after your property for a service commission. Hiring them is also not a bad idea given the value of property in the long run.

Action Plan

In a situation where you realise that your property back home has been encroached one needs to take immediate steps to ensure early eviction:

Get Ready: The first step in such a situation is to brace up for some tough struggle to get back your property. Ensure that the necessary documents are place before approaching anyone.

Police Complaint: Make a proper complaint with copies of all documents proving ownership at the nearest police station. The Specific Relief Act, 1963 (Articles 5 and 6) provide relief in such cases to help the actual owner in getting back possession of his property.

Legal Help: After the police complaint, the next step is to get professional legal advice on the further course of action for early repossession. Explore all options of filing a legal suit to obtain a restraint order or injunctive relief (stay) on the property.

Negotiate: There is no harm in negotiating with the people who have encroached on order to have an out of court settlement. Many a time the problem can be resolved through direct talks much faster than expected. However all such negotiations must be done with legal advice.

Be Patient: Such cases are likely to be frustrating and protracted. One must refrain from undertaking any illegal means to effect the eviction since such a step may land you in more trouble. A little care and caution can help you avoid such complications involving valuable property back home.

— The author is CEO, BankBazaar.com

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