Wednesday, November 28, 2012

NRI facing property encroachment? Steps to get it back

Living overseas with limited ability to supervise their property, Non Resident Indians (NRIs) are often victims of property encroachment in India. "Typically people buy land for investment purposes and may seldom visit the plot of land. Such land becomes an easy target for encroachment because the wrong-doers know that the person is not supervising/ checking on the land and they also know that on encroachment it is difficult for the owner to fight a legal battle in absentia. Similarly, houses of NRIs are soft targets where tenants who have lived long enough may refuse to vacate a rented place. In most situations, the legal way of eviction is cumbersome and time consuming because the tenancy laws in most states are skewed in favor of the tenants," explains P Sunder, Managing Director of, a TTK Services company.

Nidhi Singh, Founder Director of legal consultancy firm agrees, "A possessor enjoys certain judicial protection against third parties even if he is not the owner. This is in order to obviate unlawful acts of violence against the person in possession. However, illegal occupants take advantage of the prevalent laws with respect to possession and many owners face a lot of problem and harassment to get back their properties. The problem is worse in cases of NRIs who are not physically present to look after the properties and forced to depend on locals to look after the properties and litigation if any."

Prevention, then, is obviously better than cure and we have seen in an earlier article the various steps NRIs can take to prevent property encroachment. However, if your property has already been encroached upon, don't lose heart. "There are remedies provided under the law to get back the properties or protect any third party trespassing or interfering in the peaceful possession," Singh points out. But, as Sunder says, "be mentally prepared for a long haul."

Here's what you can do if your property has been encroached upon:

Step 1: Get your documents in order

"Remedies are available under section 5 and 6 of the Specific Relief Act, 1963. A person who is dispossessed from his property can get possession on the basis of title and may recover possession merely by proving previous possession and subsequent wrongful dispossession," says Singh.

In order to be able to prove that, it is important to have your documents in order. "To establish right on the property the owner or a person claiming possession must have documents such as the title deeds, jamabandis, mutation/ intkal, copy of the Will (if any) where the property has been inherited by way of a Will, original purchase agreement/sale deed, electricity bills, water bills and telephone bills etc.," Singh advices. "In addition, keep all payment receipts, cheques, bank drafts (if any) paid to the sellers and annual property tax receipts," advises Bangalore based Advocate Lokesh Anjanappa.

Step 2: Seek legal help

Find yourself a lawyer who can help you to quickly draft suitable notices of eviction and have them sent to the illegal occupants. "Discuss at length with the lawyer every minute detail pertaining to the disputed property and file a civil suit seeking 'restraint order' or 'injunctive relief' (Stay) against any continuing threat. Try and obtain copies of the encroacher's documents on which basis an illegitimate claim has suddenly cropped-up in air," says Anjanappa.

Step 3: File a police complaint

"In addition to the Specific Relief Act, proceedings can also take place under section 145 of the Criminal Procedure Code. In states like Punjab, the Government has taken steps such as setting up of NRI police stations where a person who apprehends trespassing or wrongful dispossession can lodge a written complaint. In fact, a written complaint can be sent to the Superintendent of Police (SP) by way of registered post. Even if the SP fails to respond, a private complaint in the court can be filed through an advocate and the case can then be pursued through a special power of attorney (a relative or a close friend) where it is difficult for the owner to be present in India," says Singh. "You can even file a complaint in any police station if there are any threats of bodily harm from the party," says Sunder.

Step 4: Be open to negotiation

"Knowing that there are people backing you up could make the encroacher change mind. Also, keep the window of negotiation open so that the futility of it can be impressed upon the encroacher. Considering the financial impact on the property, legal fees, professional charges, lengthy trial period, related expenses, etc., the encroacher may think it more wise to invite the litigating party for some favorable out of court negotiations/settlement," Sunder says.

Step 5: Be patient

"Timelines in litigation in India are difficult to speculate. On an average a case takes a minimum of 2-3 years. The cost of litigation varies from case to case. It depends on the city where the case is filed (litigation cost is steep in cities like Delhi, Mumbai, Ahmadabad), the complexity of the case and type of lawyer engaged (for instance a designated Senior counsel who might charge on per hearing basis or lawyer with an experience of 10-15 years)," Singh says. Getting back encroached property is often a long winding legal process. The above steps provide a broad guide on what to do if you are in a similar situation. Do consult a professional for your individual circumstance.