R. M. Sahai, J. - (1.) -Being doubtful if the suit filed u/Sec. 171 of U. P. Tenancy Act could be entertained after enforcement of U. P. Urban Area Zamindari Abolition Act (for brevity ZA Act), the Sub-divisional Magistrate exercising power as Revenue Court has submitted the record with his reasons for his doubt u/Sec. 289 (1) of U. P. Tenancy Act for opinion of this Court.
(2.) ALTHOUGH facts are not material yet it may be mentioned that land in respect of which the suit was filed is situated in Municipality It was declared as non agricultural area. The petitioner its land-holder filed the suit for eviction u/Sec. 171 of opposite party for illegal sub-lettings. One of the issues that arose was whether the suit was maintainable after enforcement of ZA Act. Answer to the question shall depend on interpretation of Section 84 of the ZA Act which reads as under :- " 84. Repeal of U. P. Act No. 17 of 1939- With effect from the date of vesting, the U. P. Tenancy Act, 1939, shall be and is hereby repealed in its application to the Urban areas. " The repeal of Tenancy Act is dependant on the ' date of vesting'. Similar expression was used in Section 339 of U P. Zamindari Abolition & Land Reforms Act, 1951. But the date of vesting under Act 1 of 1951 was the date of notification issued by State Government u/Sec. 4 of the Act from which date all estates situated in the province vested in the State. That is once a notification was issued declaring date of applicability of the Act then entire area stood vested resulting in repeal of Tenancy Act to such area. But date of vesting under Urban Act is the issuance of notification u/Sec. 8 of the Act which is extracted below: " 8. Vesting of agricultural area in the State- After the agricultural area has been demarcated u/Sec. 5, the State Government may, at any time by notification in the official ' Gazette ' declare that as from a date to be specified all such areas situate in the urban area shall vest in the State and as from the beginning of the date so specified all such agricultural areas shall stand transferred to and vest, except as hereinafter provided in the State free from all encumberance. " It is unlike Section 4 of Act 1 of 1951. The date of vesting of any land is dependant on its demarcation as agricultural area which is defined under sub-section (1) of Section 2 as under :- " 2 (1) "agricultural area " as respects any urban area means an area which with reference to such date as the State Government may notify in that behalf, is- (a) in the possession of or held or deemed to be held by an intermediatry as ' sir', ' Khudkasht ' or an intermediatry's grove ; (b) held as a grove by or in the personal cultivation of a permanent lessee in Oudh ; or (c) included in the holding of- (i) a fixed-rate tenant, (ii) an ex-proprietory tenant, (iii) an occupancy tenant, (iv) a tenant holding on special terms in Awadh, (v) a rent free grantee, (vi) a grantee at a favourable rate of rent, (vii) a hereditary tenant, (viii) a grove holder, (ix) a sub-tenant referred to in sub-section (4) of Section 47 of U. P. Tenancy Act, 1939, or (x) a non occupancy tenant of land other than land referred to in subsection (3) of Section 30 of the U. P. Tenancy Act, 1939, and is used by the holder thereof, for purposes of agriculture or horticulture ; Provided always that land which on the date aforesaid buildings not being ' improvements ' as defined in Section 3 of the U. P. Tenancy Act, 1939, and land appurtenant to such buildings shall not be deemed to be agricultural area. (d) held on a lease duly executed before the first day of July, 1955 for the purposes of erecting buildings thereon ; or (e) held or occupied by an occupier. Explanation :-An area, being part of the holding of a tenant shall not be deemed to have ceased to be agricultural area by reason merely that it has not been used, during the seven years preceding the commencement of this Act, for raising crops or other agricultural produce ". It is convenient to set out the definition of Urban Area in sub-section (15) of Section 2 at this stage. " Urban Area ", means an area which- (a) in the case of the territory mentioned in els. (a) to (d) of part-A of the Schedule, were, on the 30th day of June, 1954 included in a Municipality, a notified area, a town area (not being a town area situate in Rampur as defined in the Rampur (Administration) Order, 1949 or a Cantonment) under the law applicable thereto, and (b) in the case of the rest of Uttar Pradesh where, on the 7th day of July, 1949, included in a Municipality, or notified area under the provisions of the U. P. Municipalities Act, 1916 or in a Cantonment under the provisions of the Cantonment Act, 1924, or a town area under the provisions of the U. P. Town Areas Act, 1914 ". Urban area under the Act no doubt means area included in a Municipality or local area. But under Section 8 only that area out of Urban area vests in the State for which a notification had been issued after its demarcation as agricultural area. It is further clear from the expression, all such areas in the urban area in section 8 that it is not entire area but only such area as has been demarcated as agricultural area can be notified u/Sec. 8 and it is that area alone that vests in the State. Rationale for such a provision is not far to seek. In the statement of object and reasons it is mentioned that U. P. Act 1 of 1951 did not extend to agricultural area lying within Municipality, cantonments, notified areas etc., therefore, the bill was introduced for the acquisition of the right of intermediaries in land situated within Urban limits and held either by tenants, rent-free grantee etc. " This Bill provides for the acquisition of the rights of intermediaries in lands situate within urban limits and held either by tenants, rent-free grantees, grantees at favourable rates of rent and grove-holders or by intermediaries as ' sir ', ' Khudkasht ', or groves and also for the introduction of land reforms Similar to those that have been brought into force in the rural areas. The Bill, does not seek to interfere with the possession and rights in the built up of uncultivated areas. In order to obviate hardship to lessees who have taken lease of land for building purposes after a particular date, but have let it out temporarily for cultivation, it has been provided in the Bill that such lessees will be able to eject their sub-tenants and utilise the land for building purposes ". Thus land reforms in Urban area was introduced similar to that in rural area in respect of agricultural land. As stated the land held for purposes other than agricultural have been excluded. ALTHOUGH in the urban area defined in the Act the entire area in a Municipality or notified area is included but the vesting is only in respect of that area which has been demarcated as agricultural area, and has been notified u/Sec. 8 of the Act. Since the abolition of Tenancy Act takes place from the date of vesting that is the date of issuance of notification u/Sec. 8 in respect of agricultural area demarcated u/Sec. 5 the provision of Tenancy Act ceases to apply to land that has been demarcated as agricultural area and to no other land. The argument that if the Legislature would have intended to confine repeal of Tenancy Act to agricultural area alone then it would have used this word before Urban area in Section 84 appears to be devoid of any substance. Surplusage in a section is avoided. The Legislature having defined the word agricultural area, urban area and then confined vesting of agricultural area only, the repeal of Tenancy Act has to be confined to agricultural area aad not urban area. The fallacy in the argument can further be demonstrated by resorting to other provisions of the Act. Section 3 empowers State Government to issue a notification to acquire interest of intermediaries in Urban area by directing that, ' agricultural area in any, such area be demarcated '. The word ' any ', in the context it has been used means a ' Municipality ' Town Area etc. That is demarcation proceedings have to take place for entire area in Urban area and after revision of records under section 7 the notification of vesting u/Sec. 8 is issued of agricultural area only. Consequences of vesting u/Sec. 10 also relate to agricultural area and to no other area in Urban area. Similarly Sections 12 to 18 deal with tenure-holders of agricultural area alone. Possession u/Sec. 23 can be taken by Collector of agricultural area. In fact the entire scheme of the Act shows that it applies to only that area which is demarcated as agricultural area. It has no application to a land which is non-agricultural area or to put it differently that which has not been declared as agricultural area. Therefore, Urban area to which the provision of Tenancy Act do not apply has to be confined to the area which has been demarcated as agricultural area. For the reasons stated above the Revenue Court may proceed with the case as provisions of U. P. Tenancy Act cease to apply to that area alone situated in Urban Area which had been demarcated as agricultural area and in respect of which a notification had been issued u/Sec. 8 of the Act. To put it differently or to be specific to the issue referred by the Revenue Court the provisions of U. P. Tenancy Act did not cease to apply to entire area situated in Urban area. In view of this the other questions which are part of the same issue do not survive. Record of the case may be remitted to Revenue Court immediately for proceeding with the suit.;