• Land locking to property

My wife is a owner of a piece of and (230 sq meters) since 2007. All these years it lied submersed as a water-logging area. Now that we are planning to construct a house on the land, the town planners do not approve it for building purpose on the plea that it does not have the approved road. This is the same fate of my 6 neighbours who own their properties in the adjacent land in a strech of abuout 3000 sq meters. But all of us are unable to construct or dispose this property for lack of road. Most interestingly, the townplanners do not have area layout for this patch of land, though it is in the heart of the city. The only approach road the town planners cite for the sizeable area is a 5ft embankment road of a pond facing our lands. This embankment road is also high above the ground level of our property—neither motorable nor an all-weather road. It is also surprising that the road mapped in the sale deed from the previous owner hardly exists as a 30 ft road. Actually in the sale deed dating back to 50 years it had dotted lines showing a road in a sketh, which is obliterated by now. As per the present land holdings, it is owned by a big landlower of that area, (presently lent to liquor vendors for operation). It also seems that he will not allow us use his piece of land as a road during the construction of my house (If it is approved by the town planners). At one time, all the landowners of this piece of land, including myself approached a developer to make plans for construction of an apartment on sharing basis with us—all the seven owners, so that we could have at least a flat for ourselves, but in vain. They also failed in the front of obtaining a permission for developing this piece of land from the Town Planners. This way, we find ourselves landlocked. We don't have any alternative road to access to the main road , which is only 100 meters off the main road. As for me, this is my only property and I do not have alternative for its sale also. Who to approach in this case and how to obtain permission for construction of my house, without a motorable road to the construction area. Please suggest.
Asked 7 years ago in Property Law
Religion: Hindu

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3 Answers

1) you should file a suit and claim easmentary right of necessity from the landowner to acesss your land

2) rely upon your sale deed which shows road sketch to your land

3) section 13 of the Indian Easements Act deals with easement of necessity An easement of necessity means an easement without which the property cannot be used at all. Mere convenience is not the test of an easement of necessity. It can be claimed only when there is absolute necessity for it, i.e. when the property cannot be used at all without the easement and not merely where it is necessary for its reasonable, or more convenient enjoyment. A man cannot acquire a right of way as an easement of necessity, if he has any other means of access to his land however more inconvenient it may be than be passing over his neighbours.

4) you can claim easmentary right of necessity as there is no other way to reach your house

5) under section 35 of easement act you can obtain permanent injunction restraining your neighbour from obstructing your right of passage . pending hearing and final disposal of suit you can claim interim reliefs .

Ajay Sethi
Advocate, Mumbai
95208 Answers
7610 Consultations

5.0 on 5.0

Try to find out if the road earmarked in your sale deed is government road or not.

if yes then encroachment can be removed to make it a public road again.

However such road is a private road then you can do nothing except to buy adjacent plots of land to make a road out of it.

If original road was a public thoroughfare then you can file writ petition agaisnt the town planning authority to turn it into public road again.

Devajyoti Barman
Advocate, Kolkata
22920 Answers
498 Consultations

5.0 on 5.0

Approval for concerned authorities is essential for constructing the building

You may have to look for alternative modes for approach road to fulfill the conditions necessary for approval of construction plan.

Even the court canot interfere in the decision by the Town planning authority if there is no provision to sanction approval without fulfilling or complying the necessary procedure/rules meant for this purpose.

It is surprising that how could you purchase the property without verifying the details or availability of essentials

namely access road or easements.

You may consult a local lawyer with the property documents and th correspondences you had with the town planning authority and get a spot advise.

T Kalaiselvan
Advocate, Vellore
85409 Answers
2237 Consultations

5.0 on 5.0

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