If the Order passed in 2004,under Section 9(1), (2) and (3) of the above Act, on sale of Land in 1992, if not enforced by Govt as of now(14 years) is valid or null and void? If the Sale of the said Land under question is irrigated land and has water well in it whether can attract the provisions of the said Act. What is the provision for the maximum period within which the Order should be enforced before it is null and void?
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The above order is passed by the Assistant Collector without any notice or involvement or any information to the owner of the land who inherited this land in 1999 before passing of the order. What are my remedies under the Law to declare the Above order null and Void?
The period of limitation for an application for the execution of any decree (other than a decree granting a mandatory injunction) or order of any Civil Court is twelve years and the time of limitation starts to run from the date when the decree or order becomes enforceable.
For delay above the limitation period l, a separate application under Section 5 of Limitation Act has to be filed seeking condonation of Delay.
What procedure do I need to follow up to prevent the govt enforce the above Order?
Section 9 stipulates penalty for transfer or partition contrary to the provisions of the Act, which is the relevant provision for the purpose of the present case and reads as follows :-
"9. Penalty for transfer or partition contrary to provisions of Act.- (1) The transfer or partition of any land contrary to the provisions of this Act shall be void.
(2) The owner of any land so transferred or partitioned shall be liable to pay such fine not exceeding Rs.250 as the Collector may, subject to the general orders of the State Government, direct such fine shall be recoverable as an arrear of land revenue.
(3) Any person unauthorized occupying or wrongfully in possession of, any land, the transfer or partition of which, either by the act of parties or by the operation of law, is void under the provisions of this Act, may be summarily evicted by the Collector."
2) order does not become void if not enforced for couple of years
3) once sale is declared null and void eviction proceedings can be initiated against the purchaser
If order is passed by collector in violation of principles of natural justice writ petition has to be filed in HC against the impugned order
Please note that jurisdiction of civil courts is barred under provisions of said act
judgments in the case of Govindsingh Ramsinghbhai Vaghela [1970 (11) GLR 897] and in the case of Patel Ratilal Maganbhai [2003 (1) GLR 562] held that the Collector, competent authority under the law, can take up the stand that the transaction against the provision of law and without obtaining prior permission is void and no limitation would come in the way of the competent authority for declaring the transaction as void. Similar view was expressed by the learned Single Judge in the case of Shah Chandulal Velchand [1990 (1) GLH 448], and in the case of Saburbhai Hemabhai Chauhan [2000 (1) GLH 580] where the learned Single Judge held that mere lapse of time would not make the action of the authorities invalid. Though there is no limitation prescribed, as held by the Division Bench as mentioned above, in the case of Valjibhai Jagjivanbhai, [2005 (2) GLH 34], the Division Bench referring to the different decisions held that even the powers conferred upon the Collector under Sub-sections (2) and (3) of Section 9 are required to be exercised within the reasonable time. That means, the valid explanation should be shown for not re-opening the matter for an appropriate long period.
2)file writ petition in HC against said order passed by collector
under the limitation act, the limitation period applicable to government to take steps to preserve its rights and interest in any attribute is 30 years from the date of the cause of action
A decree or order passed by the assistant collector is deemed to be a decree or order as it has been passed by the Civil Court and Court of an Assistant Collector, under the Land Revenue Act is not subordinate to the civil Court as it enjoys the same powers.
Also, please go through Section 112 of the Land Revenue Act, which is reprodiced below:
"Section 112.-- All decrees passed under sub- Section (3) of the preceding section shall be held to be decrees of a Court of civil judicature of the first instance, and shall be open to appeal to the District Judge or the High Court as the case may be, under the rules applicable to appeals to those Courts."
P.S. I understood your question perfectly. I hope I've clarifed my point. The answer is still 12 years from the date of judgment, so it is barred by limitation as it's been more than 14 years.
hello,
the orders passed under the Prevention of Fragmentation and Consolidation of Holdings Act, Gujarat by the collector u/s 9(1) says that "The transfer, or partition of any land contrary to the provisions of this Act shall be void."
that is as if the transfer/ partition never took place. therefore it does not have a limitation period. yes, it includes irrigated land.
regards
Dear client,
Order never tuners null and void but unenforceable, Limitation for execution of order is 12 years.
Not providing opportunity to party is clear violation of audi alteram partem and void ab initio ( from beginning).
Approach High Court against any action by the govt.
