B.N. Sapru, J.
1. This writ petition is directed against a decision of the District Judge, Aligarh in Urban Land Ceiling Appeal No. 4 of 1979.
2. The Competent Authority under the Urban Land (Ceiling and Regulation)Act, 1976, had determined that the petitioner possessed 5874,16 square metres of vacant land beyond the ceiling limits applicable to him which was declared surplus by him.
3. Aggrieved, the petitioner had filed an appeal which has been dismissed.
4. In this writ petition the learned counsel for the petitioner contends that the plots Nos. 2737, 2738 and 2739 have been wrongly held to be possessed or held by the petitioner. It was urged before the District Judge that the petitioner had surrendered his tenancy right well before the appointed day in favour of Yakub who was the Zamindar of the property. In support of his case the petitioner had filed a copy of the registered deed of surrender registered on 3-1-1957 executed by him in favour of Yakub who had become the Zamindar of the land. The District Judge referred to the sale deed executed by Yakub in favour of Grih Udyog Sahkari Samiti Limited, 'Delhi Darwaja Dated 3-1-1957 and negatived the argument on behalf of the petitioner on the ground that the sale deed did not refer to the surrender of tenancy right.
5. The surrender of tenancy right is, however, mentioned in the deed of surrender dated 3-1-1975 as also in the sale deed. In view of the execution of the deed of surrender, the petitioner's tenure rights in the land came to an end. The mere mention of the petitioner's name in the Khatauni of 1382-F. would not make the petitioner the tenure holder of the land. The District Judge committed an error apparent on the face of the record when he found on the face of the deed of surrender executed by the petitioner that the petitioner continued to to be the tenure holder of the land. These plots, namely plots Nos. 2737, 2738 and 2739, have wrongly been included in the petitioner's holding while determining the ceiling limits as applicable to the petitioner.
6. Then I come to plots Nos. 2761, 2762, 2763 and 2764. These plots according to the petitioner, were used for the purpose of agriculture and could not be held to be as urban land in view of the definition of words 'urban land' contained in Section 2(o). Clause (o) of Section 2 runs as under :--
'In the case where there is no master-plan or where the master-plan does not refer to any land as urban land, anyland within the limits of an urban agglomeration and situated in any area included within the local limits of a Municipality (by whatsoever name called), a notified area committee, a town area committee and city or town committee, a small town committee, a Cantonment Board or a Panchayat but does not include any such land which is mainly used for the purpose of agriculture.'
7. In this case what had happened was that the petitioner was cultivating the said land. In the year 1970 the petitioner filed suit No. 339 of 1970 against Abdul Rashid and others who had constructed a wall obstructing the passage of the petitioner. The petitioner's case was that as a result thereof he could not go to his land. The wall stood up to 1974 in which year a portion of it fell down and the petitioner applied and obtained an injunction restraining Abdul Rashid and others from raising any construction to obstruct the access of the petitioner to the land in suit. The suit was ultimately decreed in 1977. The nature of the land is agricultural land. There is no finding by the District Judge that on the appointed day the petitioner could have cultivated the land but was not cultivating the land. In view of the fact that the petitioner's access to the land had been stopped, the fact of non-cultivation by the petitioner as on the appointed day, could not change the nature of the land from agricultural land to urban land. There may be the circumstances in which a cultivator may be unable to cultivate the land.
8. In this connection I would refer to a judgment of the Calcutta High Court in the case of Bishnu Kumar Mitra v. Sub-Divisional Officer, Howrah, AIR 1979 NOC 129. It was observed that
'In determining whether a land is agricultural land, the present criterion and not the potentiality of the land is material. If a land is originally used for the purposes of agriculture or purposes subservient to or allied to agriculture, it could be said to be used for agricultural purposes. The fact that the land is left fallow at say a particular year or a particular period owing to certain adverse seasonal condition or to some other reasons, would not make the land which is used for agricultural purposes, non-agricultural land.'
9. The District Judge had not considered this aspect of the matter while deciding the appeal of the petitioner. There were several other questions raised in the writ petition which were not pressed at this stage. as the matter is being remanded to the District Judge.
10. As regards plots, Nos. 373/2747 and 2740 the District Judge held that the petitioner's argument that whole of the plots could not be treated as vacant land in view of the provisions of the Urban Building (Regulation) Act as 2/3rd of the area would have to be left free, could not be accepted as there was no master-plan for Aligarh city and appurtenant land was to be taken under Section 2(g) of the aforesaid Act. The District Judge omitted to consider that under notification No, 2085/XXXVII-2-63 (U. C.) 76 dated May 11, 1976 published in the U. P. Gazette dated May 11. 1978 in exercise of powers under Sub-section (1) of Section 21 of the Urban Land (Ceiling and Regulation) Act, 1976, the Governor was pleased to appoint the Controlling Authority of Aligarh constituted under Section 4 of the U. P. (Regulation of Build-ine Operations) Act, (No. 34 of 1958), the Authority for approving the house scheme for economically weaker section of the society in the urban agglomeration of their respective area. This notification suggests that the U. P. (Regulation of Building Operation) Act, 1958 was in force in Aligarh. The District Judge should re-examine this aspect of the matter before deciding the appeal.
11. In the result, the writ petition is allowed in part. The orders of the Competent Authority and the District Judge holding that plots NOS. 2737, 2738 and 2739 surplus, are quashed. The District Judge is however, directed to determine again whether plots Nos. 2761, 2762, 2763 and 2764 are urban land or are excluded from the definition of urban land within the meaning of Section 2(o) of the Act, that the urban land does not include the land which is mainly used for the purpose of agriculture. The petitioner is entitled to his costs.