We had purchased one bigha land in 1990in a village outside municipality area in Dehradun, Uttar Pradesh ( now Uttarakhand). House was constructed on part of the land in 1991. Between the house and the public road there was some vacant area and the same was used by us as access to the road. However, we have continued the same path for access to road. The village now falls under the municipality and we recently head that some government funded ( health center) is about to be undertaken in the vacant area and our house gate & shops would be blocked and we would be required to access the road from the other side ( from the side of the half bigha land that was purchased later ). Can we save our current access and shops from being blocked
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You can claim easmentary right of necessity only if there is no other access to your land
in present case you can access road from other side
you can claim easmentary right of prescription if you have accessed land for last 30 years as claimed by you
contact a local lawyer
By using right of way peaceably and openly without interruption for twenty years you acquired right of easement over the land to use it as pathway by prescription. But as the land belongs to Government, it may not issue notification seeking acquisition of land under Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. You can file a suit in civil Court seeking injunction against government not to construct any structure or you can directly approach High Court in writ seeking to permanent stay on acquisition of land and construction of any structure as some steps by government become apparent.
You can file a suit for mandatory injunction and easement rights on the basis of adverse possession and and ingress and egress purpose restraining them from occupying the land without providing the existing easement rights to you.
File a suit under easement act for the access in above case
If it is a public way then they cannot block it. Moreover, the access to the road ia through your property and therefore they cannot block it. File a complaint before the competent authorities and state your position. In case they do not respond then file a writ petition in the high court.
- Since, you are using the said path for long time , then the access cannot be stopped by that authority without after opening a heath center .
- Firstly you should lodge your complaint with the commissioner of Municipal Corporation of your area for arranging the same.
- if no response, then file a suit under The Indian Easement act , for claiming path to your house on the ground of adverse possession i.e. using for long time.
.- under section 35 of the Indian Easement Act , you can obtain permanent injunction restraining the authority to raise any construction and also from obstructing your right to access till main road.
If you possess documents evidencing your title and ownership, you may file a suit against the local body with a prayer for an interim injunction restraining them from proceeding further, at the proper court in consultation with a lawyer there.
Dear Client,
The right to such access and use of light or air, support or other easement shall be absolute. Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.Easements can be positive or negative. A negative easement might be a right to receive light or support from the servient land.If your right of way is blocked in any way, this can cause inconvenience. However, to be able to take action against the person causing the inconvenience, the blockage must be a substantial interference.
Thanks & Regards
With reference to the query it is added/clarified that the shops were built in front of the house adjacent to the house gate and in alignment with the boundary wall. Entry to the shops is also through the vacant land lying between the road and the shops. Also whereas the house was built in 1991, the shops were built in 2016. No approval was taken from the Municipality for either construction of the house or the shops as the area was out of the municipality area prior to 2017. Question: Are right of mandatory injunction and easement rights applicable to shops as well and what is the correct sequence of actions required to avoid damages to our shop and also to secure access to our house as well as shops (for e.g. Stay order, complaint letter to the municipality commissioner, filing suit, if required FIR etc.).
Easmentary rights are applicable for shops
issue legal notice claiming easmentary rights
if your neighbour refuses file suit claiming easmentary right and injunction order
Yes it's Applicble in common sharing of entry and exit outlets
If the vacant place never belonged to you and if it is coming under the control of the government, then your suit for easement rights also may not be maintainable.
Hence you may peruse the property documents once again carefully and see if there is any mention about your rights to access road through the said vacant land.
If yes, then you can very well file a suit for easement by necessity against the government authorities.
You have built the shop without obtaining the plan approval from the local civic body hence you cannot claim easement rights for running your shop built in the vacant land or behind that.
You may discuss with your advocate and proceed on the suggestions made on all such further issues.
Dear Client,
In this case, if you can arrange proper documents of the shop and house and prove that you have enjoyed access to it for 20 consecutive years, you can file for a stay order against the government by filing a writ petition in the High Court.If possible, try to file the writ on behalf of any non-profit public/private organization that deals in public welfare and social cause. This would help you in achieving the desired results.
Thanks & Regards
Please be guided by my earlier advice.