Laws related to Property is a vast subject. However an NRI (Non-Resident Indian) is covered under special regulations set up by RBI under the provisions of FEMA (Foreign Exchange Management Act). RBI Laws/Rules that apply to NRIs in India do not restrict an NRI in acquiring the residential or any commercial property by way of purchase in India.
NRI’s Real estate investment has always been an attractive option for them, especially concerning having a connection with India, with their roots. There is always a fair amount of confusion about NRI’s land laws & their implications in India.
NRIs are allowed to purchase residential or commercial properties in India, but they are barred & not allowed to purchase any agricultural land, farm house or plantation property in India. Also, NRIs have their ancestral properties and these properties of NRIs are either jointly owned or given to their relatives or tenants or any third party to take care of them in their absence.
NRIs cannot frequently visit India to oversee their properties, they become easy targets for illegal possession. Opportunistic individuals often encroach on NRI-owned land and properties, whether for investment purposes or as inherited assets. NRIs are far away from their native place, which makes it a very easy target or golden opportunity for the illegal occupier as illegal property possession because an NRI is not able to visit India frequently to take care of the properties.
Given their distance from their native place, NRIs should take measures to safeguard their property and prevent illegal possession of their hard-earned or ancestral property.
Illegal possession or encroachment of properties owned by NRIs often follows a standard modus operandi, where the Local Land Mafia, in collaboration with goons and local influential people, exploits government land record machinery to acquire illegal possession or Kabza of NRI-owned properties. It is done by producing counterfeit documents for acquiring illegal possession of properties or by altering Original documents to fit the requirements of the illegal occupant or by impersonating the original NRI owners in front of government officials to fraudulently obtain possession of the property. Other mode is the act of occupying a property physically as a tenant for an extended period, or without the knowledge or consent of the Original NRI owner, which is considered illegal possession. In India, the tenancy laws can make a person vulnerable to illegally occupying the property even if it is unauthorized.
To protect the properties owned NRIs, they should keep the original documents handy. such as gift deed, copy of will (if any), jama-bandis (land record in Registry), mutations, and original purchasing documents.
Raising fence or boundary around the vacant properties and putting a board sign mentioning the name or title of the owner, can help in preventing the property from intervention by the 3rd party in India, physically.
Despite the aforesaid protections having been taken, if the property has been encroached upon, the following steps are required to be taken at the earliest.
- Make a police complaint with proper original documentation proving ownership of the property. It is advised to take the help of any legal professional for drafting of police complaint to get back the possession of the property. Suit will need to be filed so as to get an order from the court against the encroachment or to obtain a restraining order or stay (injunctive) against illegal possession of the property.
- The NRI and the party illegally possessing the property can sort out the matter through negotiations. This procedure could be followed by getting legal advice.
- There are remedies provided under the law to get back the properties or protect any third party trespassing or interfering in the peaceful possession. A person who is dispossessed from his property can get possession on the basis of title and can recover possession merely by proving previous possession and subsequent wrongful dispossession.
Conclusion
If anyone encroaches or trespasses upon a property then, first of all, owner already has certain rights regarding the protection of his property. Apart from various remedies available to him like protecting the property through various means, he may approach the court for an injunction order under relevant provisions of laws and can claim damages also.
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