The absolute owner has
absolute rights over the property. He
may use the property as he likes. But
there are certain compulsions, which restrict his rights to use the property 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 ofproperty 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”.
Absolute Title
Sec 11
directs that there can be no restriction on the enjoyment of property
which has been transferred absolutely.
Eg. 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. This 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 another portion is retained by the owner or other co-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.
Restriction by its owner
Section 40 of the Transfer
of property Act also deals with restrictions on the use of the property by its
owner. 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 who 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, of T.P. Act, according to this section, the
transferor may direct the transferee to accumulate, the income arising from the
property. The direction may be 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 directions for accumulation of income
arising from the property, transferred 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 and 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
Conversation of Land
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 use of agricultural lands for certain
other purpose by some institutions with permission of Government. Such institutions may use agricultural land
for non-agricultural purpose, but cannot sell such agricultural lands. Permitted uses are industrial development,
educational institutions, places of worship, housing projects, horticulture,
floriculture and agro based industries.
There are restrictions on holding of the agricultural property a
depending upon the nature of the use.
Zonal Regulations
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
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.
The department of
forest and environment restricts the use of the property near sea coast, under
coastal zone regulations. There is
restrictions on construction of high rise buildings. The properties near catchments areas also
suffer from certain restrictions. FAR
and setbacks, though are restrictions on use of property are for the mutual
benefits.
In apartments, the
owner of flats own undivided share of the land individually and common spaces
jointly. Use of the common space is
subject to certain restrictions imposed owners’ association. All these restrictions are for common
benefit.
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