The absolute owner has absolute rights over the
property.He may use the property as he likes.But these are certain
compulsions,which restrict his rights to use the perform as he likes.The
restrictions are imposed under various levels, mostly in common interest of
public in large.When any person becomes owner of property, one of his/her
important right is right to use and enjoy the property in any lawful purpose
and peaceful manner.The Transfer of property Act provides for certain
exceptions.This is reflected in Sec 11 of transfer of property Act – 1882,
which provides as follows:
Sec 11 Restriction repugnant to interest created — “Where
on a transfer of property, an interest there in is created absolutely in favour
of any person, but the terms of the transfer direct that such interest shall be
applied or enjoyed by him in a particular manner, he shall be entitled to
receive and dispose of such interest as if there no such direction”.
Sec 11 directs
that there can be no restriction on the enjoyment of property which has been
transferred absolutely.E.g., Where the
property has passed absolutely to the purchaser, any direction contained in the
sale deed which is contrary to the absolute enjoyment is void and not
enforceable.
But, Section 11 Provides for an exception. Section
stipulates that if any restrictions are imposed on a piece of immovable property for the purpose of securing the beneficial enjoyment of another piece
of such property such directions/restrictions shall prevail over. This
situation arises mostly in case, where a portion of proportion is transferred
and the portion is retained by the owner.
The owner may put some restrictions on the use of the
property sold for the benefit of portion of land retained by the owner.However such restrictions are not binding on
third parties who are not a party to the contract.
Section 40 of the Transfer of property Act also deals
with restrictions on the use of the property by its owner. In the section
prescribes “Where, for more beneficial enjoyment of his own immovable property,
a Third person has independently of any interest in the immovable property of
another person, or any easement there on, right to restrain the enjoyment in a
particulars manner of later property.This is right of a third person.Who is not a party to the contract?
This right is available against transferees. But such
rights are enforceable against a transferee with notice or against a transferees
got the property without consideration they are not enforceable against
transferee without notice or against a transferee with consideration or against the property.
There are clear differences between section 11 and 40.
The restrictions under section 11 are positive or affirmative. These
restrictions are enforceable only against the parties to the contract. But restrictions under 40 are negative in
nature and are enforceable by the third parties, against transferees.
Another important section which restricts the use of
property is section 17. According to this section, the transferor may direct
the transferee to accumulate. The income arising from the property. The
direction may to accumulate the income either in full or in part.However such
directions to accumulate the income cannot be permanent. Such directions may be
imposed for a period of eighteen years from the date of transfer or for the
life of transferor whichever is longer. Any direction for accumulation of
income arising from the property transfer for a period longer, than the periods
referred are void.
For example, the grantor of the property may provide
for enjoyment of the property by Mr. “A' until Mr. “B” attains 18 years of age
are also direct Mr. “A” to accumulate the income from the property until “B”
attains 18 years of age. But transferor can direct the transferee to accumulate
the income arising from such property for indefinite period for the purpose of
· Payment of the debts of the transferor
· The provision of portions of children
· Remoter issue of the transferor
· For the preservation or maintenance of the property
transferred
Section 95 of In Karnataka Land Revenue Act provides
that, agricultural land cannot be used for non-agricultural purpose without the
permission of the Deputy Commissioner and Section 97 provides that
non-agricultural land cannot be used for agricultural purpose again without
permission of the Deputy Commissioner. This is mainly to control the conversion
of agricultural land and to protect agriculturists.
The Karnataka Land Reforms Act, under Section 109, allows
certain category of institutions from the restrictive provisions of owning
agricultural land. Such institutions may use agricultural land for non-agricultural purpose, but cannot sale such agricultural lands permitted
uses are industrial development, educational institutions, places of worship,
housing projects, horticulture, floriculture and agro based industries. These
are restrictions on holding of the agricultural property a depending upon the
nature of the use.
The Karnataka Town and country planning Act, 1961 Sec
14 (1) provides that “On and from the date on which a declaration of intention
to prepare an outline is published under Sub-Section (1) of Sec – 10 every land
use, change in land use and every development in the area covered by the plan
shall conform to the provisions of this act the outline Development plan and
the regulations as finally approved by the State Government under subsection
(3) of section 13.Sec 14 (2) provides that such change in land use or
development as is referred to in sub-sec(1) shall be made except with the
written permission of the planning Authority which shall be contained in a commencement
certificate granted by the planning authority in the form prescribed u/s
15(1) Sec 15(4) says that if any person does any work on, or
makes any use of any property in contravention of Sec 14(1), the planning
authority may direct such person by notice in writing, to stop any such work in
progress or discontinue any such use, and may after making an inquiry remove or
pull down any such work and restore the land to its original condition or as
the case may be take any measure to stop
such use.
Also Sec 300 of the Karnataka Municipal Corporations
Act, 1976 provides that the construction or reconstruction of a building shall
not be begun unless and until the commissioner has granted permission for the
execution of the work, Sec 304 provides that the commissioner shall not permit
the construction of any building of public entertainment or any addition
thereto, if such building is:
Within a radius of 200 meters from any residential
institution attached to a recognized educational institution such as, a college
or High school or Girls School or Public Hospital with a large indoor patient
ward or an orphanage containing one hundred or more inmates. Situated in any
thickly populated residential area which is either exclusively residential or
reserved or used generally for residential as distinguished from business
purposes
Located in any area reserved for residential purposes
by any housing or planning scheme or otherwise under any enactment. The
planning authorities and Local bodies also impose restrictions on construction,
use of the land mostly to ensure orderly constructions with natural light and
air and also to provide peaceful and proper ambience and atmosphere to
educational institutions, hospitals.
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