This article is written by Arvind Jain.
Table of Contents
Scope of this Article
Illegal Occupants who illegally enter a property, can be directly handled under Criminal Laws alone and are not discussed here. This discussion is restricted to those Illegal Occupants who entered the property with the (express or implied) consent of the Landowner, but refused to vacate on demand or as per the promises made to the Landowner.
The funny side: From a criminal’s point of view- A movable property can be stolen and enjoyed remotely. The owner can forget and easily write off that loss. But an Immovable property cannot be moved or stolen away, An Illegal Occupant has to enjoy the immovable property on that spot only. This continues to hurt the Land-owner, every time he passes in front of that property and this confirms a bitter battle, between the landowner and illegal occupant.
Who is an Illegal Occupant?
Illegal Occupant is a real person/s, who is able to enjoy a property perpetually, at the cost of the Landowner and against his will, in violation of a law, an understanding or a contract.
Procedural law favours Illegal Occupants
Since the procedural laws like CPC and CrPC are badly outdated in India, and the loop-holes in their administration are known to people who want to beat the system. It’s very easy for one generation of Illegal Occupants to prosecute the suit for 20-30 years in various courts of the nation. During this period of 2 decades, the next generation of Illegal Occupants have an opportunity to file multiple partition suits and further entangle the matter to a higher complexity. The Legislatures who assemble to enact these procedural laws are mostly social workers or power-brokers (but not landowners) and they generally fail to see the loopholes when a law is passed. Illegal Occupants are in much larger numbers compared to Land-owners, in India. So Illegal Occupants have a larger political clout compared to Land-owners. Illegal Occupants can stop any adverse legislation from being enacted against them. Hence from many angles the future of Illegal occupants is bright in India.
Indians and Judicial System is insensitive to Costs
Rarely in India, do people with excellent knowledge of finance become judges or great lawyers. In India, even most businessmen don’t know the Future Value or Net Present Value (NPV) calculations of an Investment or a series of Investment. Rarely do lawyers or chartered accountants discuss terms like Internal Rate of Return on a prolonged activity that consumes time and money. Most humans don’t even know that all these functions are a part of any spreadsheet like excel. Many times the data to calculate these financial parameters is NOT gathered or stored anywhere. If the financial and human resources of getting rid of any illegal occupant are noted and processed in any spreadsheet, then one can easily conclude that the cost of expelling an Illegal occupant is much more than the cost of the Land.
Many times the appreciation of Land is visible to a Litigant but the Litigant fails to add interest to the costs already spent by him and happily concludes that his process of judicial prosecution is profitable. In India, No illegal occupant who has occupied a land for 40 years has ever been ordered to pay a measne profit of even 40 lakhs to the Landowner. Even National Ambassadors don’t enjoy such financial immunities.
A Story: Registration of Lease Deed is compulsory in Karnataka. A top lawyer of Bangalore called me and asked me to register a lease deed and collect the fees from the Client. He emailed the Lease Deed to me.
I met the Client in the Sub Registrar office and Client said that He wants to lease the shed just for one year to his Sister’s son and by next year Client wants to sell that plot in the market. Then I questioned the Client, if you want to terminate the lease in 1 year, why get it registered? He was puzzled. I explained to him that by registering you are confirming the possession of an outsider and gaining nothing. You are opening a channel of litigation by spending 1 lakh in the Sub Registrar’s office. The client was convinced, but NOT sure.
Client called his family-lawyer in Mumbai and I explained the whole story over a call again to the Lawyer. The Mumbai Lawyer was convinced. He asked me what to do to secure the property?
I said I will draft documents of eviction, and registration of those documents is not compulsory. The Mumbai-Lawyer said Go-Ahead. I drafted a separate set of documents that was executed by all members of the Tenant’s family. The set of documents consisted of:
- “Future” declarations and “Future” Affidavits
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- confirming that Tenant has removed all his goods from the shed, and returned the keys to the Landowner, authorising him to lock the premises and safeguard it.
- Further confirming that any stuff that is left over does not belong to Tenant and may be disposed at tenant’s cost and risk.
- Further confirming that Security Deposit may be adjusted for Rental Arrears, and cost of repainting and repairing the Shed leased.
- A letter confirming that Tenant has overstayed in the Shed for a month and willing to pay 6 times the rent as measne profits and cheques attached to the Letter.
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- Blank Cheques for payment of Measne Profits at 6 times the Rent.
The Mumbai Client was very happy for saving the Stamp Duty and getting documents that eliminated his fears.
Ways of Due Diligence
- Avoid Legal Fashions: Governments make execution and/or registration of documents compulsory for more revenue, not to secure investors. Investors have to be responsible to safeguard their interest before signing any document or before creating any charge or encumbrance. ie. Governments declare something to be a legal-fashion and applaud the adopters of the fashion. Is this applaud worth the returns, needs to be assessed before jumping on the band-wagon.
- Avoid Casual Communication: People who enter from the backdoor, should not get access to the front door and the Landowners need to possess a document that empowers them to drive them out of the backdoor only. Landowner should not create any paper trail, that enables Illegal Occupants to claim legal occupancy. In current times, a casual SMS or a WhatsApp message can create a small evidence to prove legal occupancy. Its best for the Landlord to avoid telecom communication with defacto occupants when the stakes on the Land are very high. In legal words, Occupants who gain de facto possession, should be evicted using de facto means. Landowners should not be advised to adopt de jure means to evict de facto occupants. [The term “de facto” means casual and “de jure” means formal, herein]
- Documentation: When a person needs de facto occupation, he is willing to fix his signature on any documents or even blank documents and offer any unaccounted consideration just to step in. Landowners should avoid getting overwhelmed and simply grab these documents. It’s best to have a smart lawyer here. Once the occupation is allowed then expensive lawyers and expensive legal processes need to be adopted. Landowners need not sign any documents, but the occupant has to sign documents and those documents have to make most of the occupant’s activities a crime on the Land. This enables the Landowner to use force as a Right Of Private Defence against the occupant, as enacted in Indian Penal Code. It’s very important that all documents fix very high measne profits and render prolonged occupation highly unviable for the occupant. The payment of measne profits has to be fixed daily or weekly to ensure that numerous periodical demands continue to disturb the occupant and render him restless.
- Centipede principal of Suing: Even a strong person avoids holding a centipede or a snake by his firm hands. They always use a forceps or a long fork. A landowner should never admit in any Court that his property is under the occupation of an illegal occupant. Never sue illegal occupants directly under CPC. That could be the worst mistake. A better idea would be to Create a fake legal occupant and sue him. It’s very easy to create legal documents in favour of a fake occupant. Get a decree and delivery warrant against the fake occupant, who should be absconding, after filing his written statement. The Landowner should get a decree and a delivery warrant in his favor against the fake occupant, whose credentials are genuine on paper. Landowner will have 12 years time to execute that decree. The landowner has to Wait for 3 or more consecutive official holidays and execute the decree with a group of 200 cops. It would not be a bad idea to involve a seasoned politician to enable all the executive tasks. In case Illegal Occupants approach a Court of Law, the strongest defence supporting the landowner would be — Illegal Occupants don’t get the right to sue you for fraud, as long as they don’t have proof of legal occupation. Electricity Bills and Water bills are evidence of using electricity and water and NOT proof of gaining possession from a person who had legal possession. Moreover, Adverse Possession can be used to defend a claim but not establish a claim in a suit.
Finally as technology advances and gets more accessible to all human beings, it will be much easier for illegal occupants to prove unopposed existence on a land and claim temporary injunction in a Court.
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