MEDIATION IN LAND ENCROACHMENT
Mediation in Land Encroachment Disputes- An Alternative Dispute Resolution Technique
AUTHOR: GAURAV GOEL
What is Land Encroachment? -Mediation in Land Encroachment Disputes- An Alternative Dispute Resolution Technique
Land encroachment means the violation of the property rights of a landowner. A person doing so does not hold any legal right to land or has permission to use it. This may involve establishing a building on someone else's land or property.
A person illegally whether intentionally or unintentionally extends part of the building into someone else's structure. Usually, invaders target unattended or vacant properties.
Land encroachments have become commonplace in India and several court cases are still pending. Therefore, knowing the procedures for dealing with land encroachments is crucial to avoid such complications in advance.
Primary dispute redressal mechanism in Land Encroachment- Mediation in Land Encroachment Disputes- An Alternative Dispute Resolution Technique
The primary Dispute redressal Mechanism in Land Encroachment includes litigation through the initiation of the Indian Penal Code provisions.
The Indian Penal Code (IPC), 1860 applies to land encroachment:
Section 441 of the Indian Penal Code 1860 deals with encroachment on property and lands in India. According to it, encroachment occurs when an individual attempts to illegally enter someone else's land or property. Article 441 of the IPC also applies to trespassing on private property.
It is considered an offence within the meaning of Section 442. Apart from that, according to the law, a judiciary can either stop or prevent encroachments from infringing on the property of others. A judiciary may also require an encroachment to pay compensation for interference with another's property.
Compensation is assessed based on the loss caused by the encroachment and the current value of the land. The landowner can claim the damages by going to court in accordance with Order 39 of the Code of Civil Procedure.
Section 447 of the IPC mentions that the encroacher shall pay a fine of ₹550 or face imprisonment for a term of up to 3 months. However, the penalty depends on the offence committed.
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ADR mechanism in Land Encroachment- Mediation in Land Encroachment Disputes- An Alternative Dispute Resolution Technique
The most common way to deal with Land encroachment is court litigation, but it can be a long and difficult process. Apart from taking up a lot of your time, it will also drain your finances.
Therefore, you must choose an amicable settlement if you are able to do so. You can initiate an alternative dispute resolution (ADR) mechanism if the intruder does not leave after a certain period of time.
In the real estate sector, alternative dispute resolution (ADR) methods can be used in many ways. Each party involved in the expansion, administration or management, acquisition and sale of real estate understands the implications of lengthy litigation and the impact that disputes have on them as the costs involved in resolving litigation are even more expensive.
Nonetheless, whenever a dispute arises, ADR can step in and resolve the issue or conflict quickly and cost-effectively. ADR acts as an alternative to costly and time-consuming litigation. In many cases, it expands the options available to resolve disputes and minimizes costly litigation.
To opt for one of these methods, one must first determine the eccentricity of the litigation and the need for the parties involved to control the costs, to have a final judgment quicker, more importantly, to preserve the confidentiality and privacy of the parties.
The procedure of Mediation in Land Encroachment- Mediation in Land Encroachment Disputes- An Alternative Dispute Resolution Technique
Mediation is a way for the parties to a dispute to imagine a way out of the conflict and come to a binding decision to resolve their dispute, using a neutral third party to facilitate this. The role of a mediator is to ensure an impartial presence in a less formal environment.
Because they are impartial, they will help you and your neighbour see all sides of the situation and help you come to an agreement together. A mediator will not make a decision for you but will help you find a solution on which you all agree.
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Benefit of Mediation in Land Encroachment- Mediation in Land Encroachment Disputes- An Alternative Dispute Resolution Technique
Mediation is the easiest way to resolve the encroachment issue. All you need is a property paper to get your point across. Rather than a party being subject to an injunction or even being evicted from their home, mediation could help solve problems between neighbours, save a lot of money and help residents maintain their relationship.
Land Encroachment matters even led to the demolition of structures, partially or fully. These matters include emotions or sentiment especially if it is included with the residential homes. Whether Mediation proceedings include Government-individual or individual-individual it helps parties to sit at a table and resolve the matter amicably.
Parties are at their choice to share things with a mediator or other party. If one wants they may ask the mediator to not share the discussion with another party. This is a private session of mediation which helps parties to express themselves honestly and openly.
In Land Encroachment matters, they may accept things in private sessions for example illegal ownership, trespassing, etc. The person encroaching on the Land may put forth any kind of compromise to another party.
In all, Mediation proceedings are far better than court litigation in Land Encroachment disputes especially when you want to come out of the conflict quickly.
How mediation differs from other redressal mechanisms in Land Encroachment Disputes- Mediation in Land Encroachment - An Alternative Dispute Resolution Technique
To understand how mediation is different from other dispute resolution processes, it is useful to keep in mind that in litigation as well as in arbitration a third party decides the result.
Negotiation: It is one of the most frequently used modes of dispute resolution where parties settle a dispute through communication in which both parties satisfactorily reach a compromise or agreement that favours both parties.
In the real estate sector, when the parties find themselves in a conflict or a dispute, they are reluctant to go to court because litigation does not come cheap in this sector. Negotiation is a technique highly used in Mediation to help parties to come to a common solution by compromising on some issues.
The second form of dispute resolution is Arbitration. This is a more formal structured type of dispute resolution for higher conflict situations, where you may not want to be in the same room as the other party.
A qualified person will arbitrate your discussion and you will have the opportunity to plead your own case. It differs from mediation as in arbitration an arbitrator reviews the rights and wrongs of a dispute and renders a decision. The final decision will rest with the arbitrator and the court will make the decision legally binding.
Mediation in Land Encroachment is the most efficient and effective way as the land owner and the encroacher will communicate and controls the decision outcome. The mediator will only facilitate their communications.
The mediator will help you reach a decision together through a process of discussion - however, they will not make the decision for you. Both of them will decide how many sessions they have to conclude the matter. However, such independence is absent in other procedures of dispute resolution.
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Mediation as "success" in Land Encroachment- Mediation in Land Encroachment Disputes- An Alternative Dispute Resolution Technique
In recent years, our world and our society have seen a dramatic increase in litigation. Going to court to settle disputes seems to be an almost instinctive reaction from our fellow citizens. However, the underlying reality is that litigation can be financially and emotionally difficult for all litigants, and can even negatively impact our long-term economic progress, especially when it ties up businesses.
While buyers and sellers of real estate are generally able to settle the small irritants that arise during their transactions, unfortunately, many other disputes end up in court.
Mediation is one such option that is rapidly gaining popularity in developed economies – a route that has the potential to dramatically reduce the time and cost of resolving disputes. Mediation can be the first step to resolution between the parties.
Conclusion- Mediation in Land Encroachment Disputes- An Alternative Dispute Resolution Technique
The benefit of mediation in land encroachment disputes is vast but, in my opinion, the greatest benefit is reaching a decision outside the confines of the court order.
Often these disputes involve neighbours who will live side by side and see each other almost every day for most of their lives. Being able to find a solution for both parties that is thought out and agreed upon between them, rather than enforced by a judge, makes for a much happier home-living environment.
Mediation is certainly not just about banging the heads of the parties - in fact, what I've learned is that it has nothing to do with banging heads. The mediator assumes a totally impartial, equal role, without judgment and without opinion.
Thus, what the mediator brings to the table of a dispute is an alternative for the parties; a way to reach a solution; a way to end the matter immediately; a way to end the conflict; a way to stop spending money; a way for the parties to agree to find a solution that satisfies them both.
