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2. The petitioners have questioned the legality and validity of the order passed in revision by the respondent No. 1, State of Gujarat, recorded, on 30-11-1993, confirming the order of the Collector passed, on 15-9-1992, directing the petitioner to hand over possession of agricultural lands bearing survey Nos. 655 & 656 (disputed lands) on the ground that there is breach of the provisions of Sections 73-A and 73-AA of the B.L.R. Code.

3. The land admeasuring 9 acres and 30 gunthas and 0. 37 guntha bearing survey Nos. 655 and 656 respectively situated, at Moje Mou, Taluka Idar, District Sabarkantha, came to be surveyed and settled in the year 1934 by the Erstwhile State of Idar. The respondent No. 1, State of Gujarat, issued a notification in exercise of powers conferred under Section 73-A of the B.L.R. Code applying the said section to the land situated within the area specified in the Schedule. The notification came to be issued on 4-4-1961.

The important question which falls for appreciation and adjudication is whether the settlement of survey of land revenue made by the Erstwhile State Idar, prior to the introduction of the provisions of Bombay Land Revenue Code could be said to be a survey settlement under the B.L.R. Code. The contention of the petitioners is that the survey settlement of land revenue carried out by the authority of the Erstwhile State of Idar came to be accepted by the State Government and it has become a survey settlement under the Bombay Land Revenue Code. The contention of the respondent authority is that the survey settlement of land revenue made prior to the introduction of the Bombay Land Revenue Code cannot be said to be a survey settlement under the Bombay Land Revenue Code. However, there is consensus on the point. If the survey settlement of land revenue carried out by some authority and accepted by the State Government is held to be a survey settlement under the Bombay Land Revenue Code, then, in that case, a notification issued under Section 73-A of the B.L.R. Code will not apply. Notification No. LND-3961/41509-G dated 4th April, 1961 came to be published by the respondent No. 1, State of Gujarat, exercising its powers of Section 73-A of the B.L.R. Code. By virtue of the said notification, the provisions of Section 73-A shall be applicable to all those villages in the Scheduled area in the State of Gujarat in which survey settlement under the Bombay Land Revenue Code has not been introduced and to which the provisions of the said Section 73-A have not been made applicable before the issue of the notification. It also exempts from the operation of Section 73-A, all persons not being members of a Scheduled Tribe, holding lands in the villages to which the said Section 73-A is declared to be applicable by the notification. The area where the disputed land is situated is shown in the scheme about which there is no dispute. It is in this context, the aforesaid contention that the notification will not apply to the disputed land as survey settlement had already been effected long before by the Erstwhile State of Idar. The contention of the petitioner is not accepted by the authorities below after remand. Therefore, the question would arise as to whether the said notification will apply to the disputed land or not for which it would be necessary to examine as to whether the survey settlement carried out by the authority before the introduction of the Bombay Land Revenue Code could be said to be survey settlement under the Bombay Land Revenue Code or that fresh survey is required to be made for attracting the rigours of the provisions of Section 73-A of the B.L.R. Code. With a view to appreciating this aspect which is countenanced by the State of Gujarat, a few relevant provisions would be necessary to be referred to.

6. The admitted fact is that the disputed land was forming part and parcel of Erstwhile State of Idar and survey settlement for the land revenue had been carried in 1934. The question, therefore, requires consideration and adjudication is as to whether the survey settlement made by the Erstwhile State of Idar is a survey settlement under the Bombay Land Revenue Code or not. For that, it will be necessary to refer to the provisions of Section 3(3) of the B.L.R. Code which provides as to what is the survey settlement. It reads as under:

9. It is in the aforesaid factual scenario and the legal context, the notification in question dated 4th April, 1961 would not apply to the land in question. The notification issued under Section 73-A of the Bombay Land Revenue Code itself says that the provisions of Section 73-A shall be applicable only to those villages in Scheduled areas in the State of Gujarat in which survey settlement under the Bombay Land Revenue Code has not been introduced whereas on the factual analysis and the assessment of facts, this Court has found that there was already survey settlement of land for land revenue carried by the Erstwile State of Idar in 1934 and it was in force at the time when the Bombay Land Revenue Code (Amendment) Act, 1939 came into force. Not only that, the respondent No. 1 State of Gujarat had accepted the said survey settlement of land revenue and has been accordingly recovering the assessment under the Bombay Land Revenue Code. Thus, the survey settlement of land for the purpose of revenue and assessment carried by the Erstwhile State Idar in as early as 1934 which remained in force at the commencement of the Bombay Land Revenue Code (Amendment) Act, 1939 came to be accepted by the State Government and accordingly the assessment is made and revenue is recovered in respect of the disputed land. It is in these circumstances, the survey settlement of land carried out by authority of the Erstwhile State Idar and accepted by the State of Gujarat, undoubtedly, and obviously would become the survey settlement under the Bombay Land Revenue Code and therefore, the aforesaid notification dated 4th April, 1961 under which the impugned orders came to be passed would not apply and resultantly the impugned orders cannot be sustained.