If you are stuck in such a situation, here is what to do.
I am Mr. Verma, and I reside in a house in the city of Indrapuri. Recently, a large residential complex, “Zenith Towers,” with about 20-25 apartments, was constructed by “Apex Builders” on the plot adjacent to mine. A passage between our properties has historically been designated as a common passage, which my family has always maintained. When Apex Builders began their project, we reiterated the understanding that the passage remains common for both properties.
However, the developers have now begun constructing a substantial drainage system for their entire apartment complex directly underneath this common passage. The drain line is situated entirely within the common area, not on their private land. This unilateral action has raised serious concerns for me. Is it legally permissible for them to build a permanent structure for their exclusive use on a common passage? Furthermore, if I plan to redevelop my own property in the future, this new drainage system could pose a significant obstacle, potentially preventing the installation of my own utilities and foundation work. I need to understand my legal position and the steps I can take to protect my property rights.
Advice in such cases
In property disputes of this nature, acting promptly and strategically is crucial. The primary goal is to prevent the other party from completing the illegal construction, as reversing a completed structure is more complex than stopping one in progress. The situation you are facing involves an infringement of your easementary rights over the common passage.
Immediate Injunction: Your first legal step should be to file a suit for a permanent injunction in the appropriate civil court. Along with the main suit, you must file an application for a temporary or ad-interim injunction to get an immediate court order to halt the construction activity. This is critical to prevent further work while the case is being heard.
Legal Notice: Concurrently, or even just before filing the suit, have your lawyer send a strong legal notice to the developer, Apex Builders. The notice should clearly state that their construction is illegal, detail the infringement of your rights over the common passage, and demand that they cease all work immediately. This creates a formal record of your objection.
Gather Documentation: Collect all relevant documents, including your property’s sale deed, any partition deeds, or agreements that mention the common passage. Take clear, dated photographs and videos of the ongoing construction to use as evidence.
Consult with Lawyer: The very basic and important step to start is to talk to a lawyer/advocate. You should not hesitate in paying his consultation fee, i.e., it might be in the range of Rs. 10,000 to 50,000, depending on the case. He is helping you in this situation to come out. He is an expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved in 7-10 days.
Applicable Sections of Law
Such disputes are governed by civil laws, primarily concerning property and easement rights. The new criminal laws like the Bharatiya Nyaya Sanhita (BNS) are not applicable here, as this is not a criminal matter unless it involves elements like criminal trespass or mischief with an intent to cause wrongful loss.
The Indian Easements Act, 1882: This Act governs the rights of a person over another’s land. A common passage grants both parties certain rights. One party cannot unilaterally alter the passage in a way that restricts or prejudices the other’s use and enjoyment of it. Building a permanent underground structure is a clear violation.
The Specific Relief Act, 1963: This Act provides the remedy of injunctions. You would seek a prohibitory injunction under this Act to restrain the developer from continuing with the construction.
Code of Civil Procedure, 1908: The procedure for filing a civil suit and seeking a temporary injunction is laid out in Order 39 of the CPC.
Local Municipal Corporation Acts and Building Bye-laws: Every city has its own set of building bye-laws that dictate how drainage and other utilities must be laid. It is highly likely that the developer is also violating these local regulations, which can be another ground for your case.
If you are the complainant
As the complainant (the plaintiff in a civil suit), the burden of proof is on you to establish your rights and the developer’s infringement. You must demonstrate to the court that the passage is indeed common, that the developer’s construction is permanent and for their exclusive benefit, and that it will cause you irreparable harm, both presently and in the future. Your primary objective is to secure an immediate stay order on the construction from the court.
If you are the victim
As the party whose rights are being violated, you are the victim of a civil wrong. It is essential not to engage in physical altercations or take the law into your own hands. Your power lies in the legal process. Follow your lawyer’s advice meticulously. Ensure you document every interaction and every stage of the illegal construction. Your swift action in approaching the court is your strongest defense.
How the police behave in such cases
The police have a very limited role in purely civil property disputes. They will typically not intervene to stop construction unless there is a specific court order (injunction) directing them to do so, or if the situation escalates into a “breach of peace.” You can approach the local police station to file a complaint, which may be recorded as a Non-Cognizable Report (NCR), but they will almost certainly advise you to approach the civil court for a resolution. Their main role is to maintain law and order, not to decide property rights.
FAQs people normally have
Can one party make a permanent construction on a common passage?
No. A common passage is for the shared use and enjoyment of all parties who have a right to it. No single party can make a permanent alteration or construction on it without the consent of all other parties, as it infringes upon their easementary rights.
Will this drainage system create a problem for my future redevelopment?
Absolutely. This is one of the strongest points in your favour. The presence of a large drainage system for a 20-flat building will severely encumber the land and can create significant technical and legal hurdles for your future construction plans, thereby diminishing the value and utility of your property. This potential future harm is a key ground for seeking an injunction.
What is the most important first step?
The most critical first step is to consult a qualified civil lawyer and file a suit for an injunction to get an immediate stay order from the court. Time is of the essence.
What evidence is required?
To build a strong case, you will need the following evidence:
Property Documents: Your Sale Deed, Title Deed, or any other document that establishes your ownership and describes the common passage.
Photographic and Video Evidence: Dated photos and videos showing the construction in progress. It is helpful to show the exact location within the common passage.
Correspondence: Any letters, emails, or messages exchanged with the developer regarding the passage or the construction.
Witnesses: Testimony from neighbours or others who are aware of the historical use of the passage can be helpful.
Site Plan/Map: A survey map or site plan that clearly demarcates your property, the developer’s property, and the common passage in question.
How long will the investigation take?
Since this is a civil matter, there is no “investigation” in the police sense. The process is a court proceeding. The timeline is as follows:
Temporary Injunction: An application for a temporary injunction is usually heard on an urgent basis. You can potentially get a stay order within a few days to a week of filing the case, depending on the court’s schedule.
The Main Suit: The final resolution of the suit for a permanent injunction can be a lengthy process, potentially taking several years to conclude through the trial process. However, the initial temporary injunction is what provides immediate relief by stopping the construction.
Advocate Sudhir Rao, Supreme Court of India