ORAL JUDGMENT

1. Present petition is filed by the petitioner under Articles 226 and 227 of the Constitution of India as well as under the provisions of Gujarat Land Revenue Code, 1879 (hereinafter referred to as the 'Code') read with Rules framed thereunder, for the prayers as prayed for inter alia that appropriate writ, order or direction may be issued quashing and setting aside the impugned orders at Annexures-A,B and C on the ground stated in the memo of petition.

2. Heard learned advocate Shri N.V. Gandhi for the petitioner and learned AGP Shri Manan Mehta for the respondent-State.

3. Learned advocate Shri N.V. Gandhi for the petitioner referred to the background of the facts as well as the impugned orders produced on record and submitted that the transaction has taken place in 1981. He submitted that as stated in the recitals of the sale deed produced on record, the petitioner has already been in peaceful possession of the land prior thereto since 1977 and the consideration has been paid as per the agreement to sale. However, the Deputy Collector has in exercised of power under Section 73AA of the Code, initiated the proceedings that the transaction has taken place is without permission and in violation of provisions of Section 73AA of the Code. He submitted that however, while exercising the powers under Section 73AA of the Code, Deputy Collector passed an order under Section 84(C) of the Tenancy Act confiscating the land and vesting the land in the Government.

5. Learned advocate Shri Gandhi referred to Section 73AA of the Code and submitted that Section 73AA refers “Restriction on transfer of occupancies of the tribal to tribal or non- tribal.” He submitted that if such a land is transferred to a non-tribal, the provisions of Section 73AA could be invoked. He, however, submitted that this provision has been brought in by way of amendment in the Land Revenue Code in the year 1981 by Gujarat 37 of 1980. Therefore, learned advocate Shri Gandhi submitted that as the transaction is prior thereto, the provisions of Section 73AA would not be attracted. Moreover, learned advocate Shri Gandhi submitted that the proceedings before the Collector also resulted in confirmation of the order of the Deputy Collector and the Collector had dismissed the appeal on the ground of delay without appreciating the fact that the order was communicated by post on 04.09.2006. Therefore, learned advocate Shri Gandhi submitted that in view of the facts, present petition may be allowed. He has also referred to and relied upon the judgment of the Hon'ble Division Bench (Coram:Hon'ble the Chief Justice Mr.Subhash Reddy & Vipul Pancholi,J.) in Letters Patent Appeal No.890 of 2017 in Special Civil Application No.10924 of 2017 and allied matters and submitted that there is no application by the transferor and such proceedings are initiated pursuant to the suo-motu exercise of power at belated stage it may not be sustained. In support of this contention, he has referred to and relied upon the judgment of the Hon'ble Division Bench of the High Court in case of Chandulal Gordhandas Ranodariya & Ors. V/s. State of Gujarat & Ors., reported in 2013 (2) GLR

1788.

6. Learned AGP Shri Manan Mehta, however, referred to the provisions of Section 73AA and pointedly referred to Section

73AA(4) of the Code and submitted that it provides that:

“73AA(4)Where a tribal -

(a) in contravention of sub-section (1) of this section, or of sub-section (1) of section 73A, or of any other law for the time being in force, transfers his occupancy to any person other than a tribal (hereinafter in this section and in section 73AB referred to as “the non-tribal”) at any time on or after the date of commencement of the Bombay Land Revenue Code (Gujarat Second Amendment) Act, 1980 (Gujarat 37 of 1980)

(hereinafter in this section referred to as “the said date”); or (b) in contravention of sub-section (1) of Section 73A or of any other law for the time being in force has transferred his occupancy