An encroachment may or may not be too difficult to notice. Usually, when another person puts up a structure that encroaches your property/land in any way, it is called encroachment.
Claiming someone else’s property and doing any kind of construction on the property which is someone else’s property is an offence in India. There are provisions in the Indian Penal Code and the Civil Procedure Code, which deal with the crimes related to property. It is a punishable offence to start construction or even enter a person’s property without his or her consent. The provision of law which refrains a person from entering someone else’s property without his or her consent is trespass.
- If someone tries to interrupt you while you are within the territory of your property may be arrested for trespassing.
- Trespass in simple words, is disturbing a person or even entering a person’s property by an unauthorised person, without or against his or her consent.
- Trespass are of three types – trespass of person, trespass of chattel and trespass of land or property.
- Trespass of person is an act in which a person without any authority or the consent of the aggrieved person, disturbs or intervenes the person from doing what he was doing before he was interrupted.Trespass of person has been explained in the law of torts.
- Trespass of chattel is an act in which a person without any authority or the consent of the aggrieved person, disturbs or intervenes with the privately owned movable property of the person. Trespass of chattel has been explained in the law of torts.
- Trespass of property or land is an act in which a person without any authority or the consent of the aggrieved person, disturbs or intervenes with the property or land of a person. Trespass of land has been explained in the law of torts as well as in the Indian Penal Code(IPC). It is a punishable offence.
- Trespass of property of a person without his consent, by another person without authority, has been defined as criminal trespass under Section 441 of the Indian Penal Code, 1860.
- As per the Section, if any unauthorised person enters upon the property of another person, without his consent then he shall be punished for criminal trespass.
- The punishment of criminal trespass has been defined in Section 447 of the Indian Penal Code.
- If a stranger has started construction on your property then, he shall be liable for punishment under criminal trespass.
- The punishment for criminal trespass is imprisonment which may extend to 3 months or fine which may extend to 500 rupees or both.
- Finable up to 500 rupees
- Imprisonment which may extend to 3 months.
- Criminal trespass upon the backyard or any other part of the property which is in someone else’s possession is called house-trespass.
- House-trespass is a more precise term as compared to criminal trespass. Criminal trespass is intervention upon any property which is not in your possession whereas house-trespass is the criminal trespass of someone’s house or any portion of his house.
- Every house-trespass is criminal trespass but every criminal trespass is not house-trespass.
- House-trespass has been defined in Section 442 of the Indian Penal Code and the punishment for house has been defined in Section 448 of the code.
- The punishment for house-trespass is imprisonment for a term which may extend to one year or fine which may extend to 1000 rupees or both.
- Finable up to 1000 rupees
- Imprisonment which may extend to 1 year.
- The first move you should make if anyone starts construction over your property is try to stop him from doing it.
- The law gives each person a power and a right to protect your property by using appropriate measures.
- Sections 103 and 104 of the Indian Penal Code allows a person to cause grievous hurt or even kill a person in order to protect your property.
- But these powers shall only be used when it becomes necessary to use it.
- If a person causes grievous hurt or kill a person while protecting his property and he has used it in a situation under which he was justified to do it, he shall not be punished for killing or for causing grievous hurt to that person as he has not committed any offence because what he did will be covered under private defence.
- The remedies which are available to you if a stranger starts construction on a property which is in your possession are to get an injunction order for stopping the construction, and you can also claim for the damages which you have suffered due to the construction.
Injunction is the order which is passed by a court to either stop or restrain the defendant from either starting or stopping to do something. In other words, an injunction is the order of a court which demands a person to either perform an act or refrain from doing an act. Injunctions are broadly divided into two types, temporary and permanent.
Permanent and Temporary Injunction
- A permanent injunction is passed as the final order restricting the defendant from doing any act.
- A 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.
- If a stranger starts construction on the property of a person then he can approach the court and file an application under order 39 rule 1 and 2 of the Code of Civil Procedure to get an order of temporary injunction.
- The court after examining the application will ask the defendants to file their reply on the case. The court after examining their reply may either reject the application or accept it.
- If the court has accepted the application then it shall make an order of temporary injunction, ordering the respondent to stop the construction work on that particular property.
- It is a general rule that no order shall be passed without hearing both the parties or in other words it is compulsory that both the parties are given appropriate opportunity of being heard before any order is passed. But there are certain exceptional cases in which a leave is given to this rule.
- One of the exceptions is an ex-parte injunction order.
- An ex-parte injunction order is an order of injunction which is passed by the court without hearing both the parties.
- In case the defendants are not replying, or the applicant feels that by the time the reply shall come, he will bear a huge loss, and if the court is also satisfied with his contention, then the court may pass an ex-parte injunction order under order 39 rule 3 of the Code of Civil Procedure.
- It happens very rarely and the burden of proof is upon the applicant to prove that his case comes under the definition of exception provided under the law.
Suggestive Reading: What to do About Unauthorized Construction on Ancestral Property
Damages are means through which a person is supposed to get approximately what he has lost. There are certain offences for which no damage or compensation can give what is lost but on the other, hand there are certain injuries for which an amount of money can compensate the loss. One such offence is trespass.
- If someone trespasses upon the property owned by you then you may approach the court and ask for the damages which you have suffered.
- Damages, in other words, is the compensation which the court asks the defendant to give to the plaintiff for the loss which he has suffered.
- If a stranger has constructed or demolished any part of your property, then he is liable to compensate you in the form of damages.
- The amount of damage depends upon the loss which you have suffered.
- Damages are given for both physical as well as mental losses suffered.
- The amount of physical loss is usually calculated by calculating the present value of the land upon which you have suffered the loss.
- Calculating a mental loss is a more complex matter, for this, the court has to go through the case thoroughly as see that the loss is of what impact and then decide an amount to be paid as damages.
PS~ It doesn’t matter if an SC encroaches your property of a person from GC does so, law doesn’t take that into consideration.