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3. The Deputy Collector, after hearing the parties and recording the evidence led by them, found that the aforesaid transfer did not in any manner prejudice the interest of the tribal occupant and that to the contrary the same was for his benefit. He accordingly, by an order dated 21st May 1984, upheld the transaction of exchange and dropped the proceedings under Section 73AA of the Code.

4. The Collector, Sabarkantha, found that the aforesaid decision of the Deputy Collector was against the tribal occupant, hence, he in exercise of suo motu revisional powers under Section 211 of the Code issued notices to the concerned parties. The Collector found that by a notification dated 4.4.1961 the provisions of Section 73A of the Code had been made applicable to Bhiloda Taluka; that, the transfer in question took place by a registered document dated 30.3.1976; that the said transfer was effected without obtaining the prior permission under Section 73A, hence, action was required to be taken for breach of provisions of Section 73A. That, the Deputy Collector had dropped the proceedings under Section 73AA, which was not in accordance with law. He, accordingly, by an order dated 13th January 1989, set aside the order of the Deputy Collector and remanded the matter to the Deputy Collector, Land-8 Scheme, Himmatnagar directing him to consider the matter afresh and take a decision under Section 73A of the Code.

7. The petitioner carried the matter in revision before the Deputy Secretary (Appeals), Revenue department, Government of Gujarat under Section 211 of the Code. The Deputy Secretary after hearing the parties observed that the original occupant of lands bearing Survey No. 94/2 of village Bundheli was a tribal and that the lands have come into the possession of the petitioner who was a non-tribal in the year 1976; that, the sanction of the competent authority had not been obtained prior to effecting the transfer; that, as there appeared to be a breach of Section 73AA of the Code, both the Deputy Collector and Collector have held that the possession of the said lands by the petitioner is illegal. The Deputy Secretary held that the transfer of possession took place in 1976; that, under sub-section 4(a)(b) of Section 73AA of the Code, the Collector could declare any transfer of land between a tribal and non-tribal effected during the period between 1.4.1961 to 1.2.1981 to be illegal. That, the provisions of Section 73AA have been made applicable to the whole of the State of Gujarat and notwithstanding the fact that a survey settlement may have taken place, the same applies to all the areas of the State. He, accordingly found that there was no reason to interfere with the orders of the Deputy Collector and the Collector and accordingly, rejected the revision application.

13. Insofar as the applicability of the provisions of Section 73AA of the Code is concerned, sub-section (1) of section 73AA places a restriction on transfers of occupancies from tribals to tribals and non-tribals without the previous permission of the Collector. Section 73AA was enacted by the Gujarat Act 37 of 1980. Under the provision of clause (a) of sub-section (4) of section 73AA, the Collector can suo motu, at any time, on an application made by the tribal transferor or his successor at any time within three years from the said date or the date of such transfer, whichever is later, initiate proceedings in contravention of sub-section (1) of Section 73AA in case where a tribal transfers his occupancy to any person other than a tribal at any time after the date of commencement of the Bombay Land Revenue Code (Gujarat Second Amendment) Act, 1980 (Gujarat 37 of 1980). Thus it is clear that the said provision applies to contravention of sub-section (1) of 73AA any time on or after the date of commencement of the Bombay Land Revenue (Gujarat Second Amendment), Act, 1980. Hence, transfer of occupancy by a tribal to a non-tribal prior to the coming into force of the Amendment Act of 1980 cannot be said to be a contravention falling within the ambit of sub-section (1) of Section 73AA. In the facts of the present case the transfer of occupancy by way of exchange has been effected in 1976, that is much before the coming into force of the Amendment Act of 1980, hence, the same cannot in any manner said to be in contravention of sub-section (1) of Section 73AA of the Code.

14. Under the provisions of sub-clause (b) of sub-section (4) of Section 73AA of the Code, the Collector is empowered to exercise similar powers in case of contravention of sub-section (1) of Section 73A or any other law for the time being in force in case where a tribal has transferred his occupancy to a non-tribal at any time before the commencement of the Bombay Land Revenue Code (Gujarat Second Amendment) Act, 1980. Hence, in case of breach of the provisions of Section 73A of the Code, the Collector has the power to initiate proceedings for contravention of the provisions of the said sub-section at any time within three years from the date of transfer or the date of commencement of the Amendment Act. However, as observed above, the provisions of Section 73A are not applicable to the subject lands in view of the fact that the original survey settlement in respect of the said village had preceded the notification under Section 73A of the Code. The Deputy Secretary, (Appeals), while holding that there being a transfer from a tribal to a non-tribal, there is a breach of Section 73AA of the Code, and that as the provisions of Section 73AA are applicable to the whole of the State of Gujarat it is irrelevant as to whether the survey settlement has been carried out or not, has lost sight of the provision of clause (a) of sub-section (4) of Section 73AA, which makes contravention of sub-section (1) of Section 73AA applicable to transfers effected by a tribal to a non-tribal, on or after the date of commencement of the Amendment Act. Whereas in the present case it is an admitted position that the transfer in question has been effected much prior to the date of commencement of the Amendment Act.