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6. Being aggrieved by the aforesaid order dated 29th May, 1989 passed by the Deputy Collector, the petitioner preferred an appeal before the Collector, Sabarkantha under the provisions of Section 203 of the Code. The Collector in his impugned order dated 19th June 1993, recorded the submission of the petitioner's advocate that the villages of Bundheli and Patiya-kuwa were Jagiri villages and that during the period of Idar State survey settlement had been carried out in respect of these villages; that, it cannot be said that the survey settlement carried out in respect of those villages during the time of Idar State was not a survey settlement under the Code, in support of which the decision of the Apex Court in the case had been cited. However, the Collector held it was nowhere mentioned in the said decision that village Bundheli was a Jagiri village, and that the advocate for the petitioner had not produced any evidence to show that village Bundheli was a Jagiri village. The Collector, further held that by virtue of the notification dated 4.4.1961 the provisions of Section 73A of the Code were made applicable to the tribal areas of Gujarat which included all the villages of Bhiloda Taluka, hence, the provisions of Section 73A were applicable to the subject lands and the same could not be transferred without prior sanction. The Collector observed that the transfer of lands of Survey No. 94/2 was from a tribal to a non-tribal on 20.4.1976, which was after the publication of the notification dated 4.4.1961; that Section 73AA of the Code came into force with effect from 1.2.1981, prior to which there was a transfer from a tribal to non tribal, hence there was a breach of Section 73A of the Act. He, accordingly, confirmed the order of the Deputy Collector and dismissed the appeal.

· That village Bundheli is situated in Taluka Bhiloda which earlier formed part of the State of Idar. In the year 1936 a survey settlement had been carried out in respect of the State of Idar, including Bhiloda Taluka. The said survey settlement having taken place prior in point of time to the notification dated 4th April 1961 under Section 73A of the Code, the provisions of Section 73A would not be applicable to the subject lands. Reliance was placed upon a decision of the Apex Court in the case of Thakoreshri Naharasinghji Dolasinhji v. State of Gujarat, to point out that in fact a survey settlement had taken place in the State of Idar in the year 1936. Reliance was also placed upon a decision of this Court in the case of Devshankar Ambalal Jani v. State of Gujarat, 1997 (1) GLR 279 for the proposition that where survey settlement has taken place prior to the issuance of notification under Section 73A, the provisions of Section 73A of the Code will not be applicable to the lands in respect of which such survey settlement has taken place. In the facts of the said case also the dispute pertained to land situated in Bhiloda Taluka, wherein the Court observed that the survey settlement which had been made by the erstwhile State of Idar had come to be accepted by the State of Gujarat, consequently the same became a survey settlement under the Bombay Land Revenue Code. It was held that the subsequent notification dated 4th April 1961 under Section 73A of the Code would not be applicable to the lands in respect of which survey settlement had been carried out prior to the publication of the said notification.

12. Ms. D.S. Pandit, learned Assistant Government Pleader supported the impugned orders. During the course of hearing, the learned Assistant Government Pleader had been directed to obtain instructions on the factual aspect as to whether survey settlement had been carried out in respect of village Bundheli, Taluka Bhiloda at the relevant time when the survey settlement had been carried out in the State of Idar. Thereafter the learned Assistant Government Pleader, instructed by Mr. M.B. Parmar, City Survey Superintendent, who was present in the court, stated that a survey settlement had also been made in respect of village Bundheli at the relevant time i.e. in the year 1936. It was further stated that the said statement had been made upon verification from the relevant record.

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11. Both the sections quoted above, prohibit the transfer of occupancies as specified therein without the prior sanction of the Collector. "Exchange" which is defined under Section 118 of the Transfer of Property Act, 1882 is a recognised mode of transfer under the said Act. Hence, the contention raised by the learned advocate for the petitioner that the provisions of Section 73A and 73AA of the Code do not envisage a transfer by way of exchange does not merit acceptance.

12. Upon a plain reading of the provisions of Section 73A of the Code, it is apparent that the same are applicable to occupancies in any tract or village in respect of which the Government has before the introduction of an original survey settlement by a notification declared the provisions of the said section to be applicable. In other words for the provisions of the said section to be applicable to occupancies in a tract or village, the notification under Section 73A should precede the original survey settlement. In the facts of the present case it is an admitted position that a survey settlement had been made by the erstwhile State of Idar in the year 1936 which covered Bhiloda Taluka, including village Bundheli wherein the subject lands are situated. The question as to whether the settlement of survey for land revenue made by the erstwhile State of Idar, prior to the introduction of the Bombay Land Revenue Code could be said to be a survey settlement under the Code came up for consideration before this Court in the case of Devshankar Ambalal Jani v. State of Gujarat (supra) and it was held that the survey settlement carried out by some authority before the introduction and remaining in force at the date of commencement of the Bombay Land Revenue Code (Amendment) Act, 1939 becomes a survey settlement under the Bombay Land Revenue Code. It was further held that the survey settlement of land carried out by the authority of the erstwhile State of Idar and accepted by the State of Gujarat had become a survey settlement under the Bombay Land Revenue Code. Thus on facts it cannot be disputed that the survey settlement was made in respect of Bhiloda Taluka including village Bundheli in the year 1936, whereas the provisions of Section 73A of the Code had been made applicable to the same by a notification dated 4th April 1961. The basic requirement for applicability of the provisions of Section 73A of the Code is that the notification under Section 73A should precede the original survey settlement, which is not fulfilled in the present case inasmuch as the original survey settlement was introduced much before the notification under Section 73A of the Code. Hence, the learned Advocate for the petitioner is right in contending that the provisions of Section 73A of the Code are not applicable to the subject lands, and therefore, prior sanction of the Collector was not required for transferring the same. This view is fortified by the aforesaid decision of this Court wherein this Court had noted the fact that the notification under Section 73A of the Code issued by the respondent No. 1 State of Gujarat dated 4.4.1961 clearly ipso facto says that it shall apply to all those villages in the Scheduled areas 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 Section 73A have not been made applicable before issue of notification. It was held that since survey settlement in respect of the disputed land situated in Bhiloda in Sabarkantha district had been made in, as early as 1934, the said notification will not apply to the disputed land.