R.M.Sahai, J. - (1.) IN this landlord's petition the questions that arise for consideration are mainly of law. Admittedly, petitioner and her husband were in medical profession. They retired from service sometime in 1970 and 1973 respectively. After retirement of husband petitioner moved an application in 1973 u/s. 21(1)(a) of U.P. Act XIII of 1972 for release of the disputed premises. It was claimed that her husband has vacated the official residence on 12th July, 1973, but he has been permitted to retain possession of only one room with permission of his successor -in -office till such time he made arrangement for getting his own house vacated. According to the applicant both she and her husband wanted to establish at Kanpur, the only place, where the applicant owned a house and as both of them were in good health they intended to start their practice and reside in the premises in dispute. According to her they needed separate premises for the purposes of consultation and examination of patients and adequate accommodation for residence befitting to their status. On the date when the application was made the petitioner was in occupation of Do -chhatti having a room and two small stores with garage and room underneath and latrine and bath -room vacated by one Mahavir Saran. The application was filed against all the tenants who were in occupation of the house. All the tenants except opposite party vacated the premises during pendency of the application. Consequently, the application was amended under Order VI rule 17 of the Civil Procedure Code. In the amendment application it was stated that the portion occupied by other tenants had been vacated and were available to the applicant but they were not sufficient for comfortable living and carrying on medical practice. The opposite party who, is also a Chartered Accountant, contested the claim and alleged that the house in dispute was not needed by the petitioner or her husband as they were residing with their son at Allahabad. It was also claimed that they did not intend to set up any medical practice nor it was practicable for them to start it at this stage at Kanpur. It was also alleged that opposite party had been carrying on his profession in the premises in dispute for a long time and he had built up a practice and will be put to great inconvenience if he was asked to vacate the same. The prescribed authority found that considering status of the petitioner and her husband and their necessity the accommodation which had come into their possession as a result of its vacation by various tenants was insufficient. It was also observed that from report of the Commissioner and evidence on record it was established that she and the husband had started a clinic in front portion of the disputed house vacated by some tenants. It strengthened their case that they intended to start practice and needed the accommodation in dispute. Consequently it was held that need of petitioner was bona fide. On comparative hardship also the finding was recorded in favour of petitioner. It was held that opposite party had acquired a house in Higher Income Group from Kanpur Development Authority. He did not believe the case of opposite party that he had transferred the same to one Y.K. Chug. According to him it was an excuse and even if it was true it did not in any way effect the application filed on behalf of petitioner. The Prescribed authority, therefore, held that the likely hardship to the petitioner was greater. In appeal the order was set aside more as a matter of law than on consideration of material on record in respect of bona fide need or comparative hardship. The appellate authority found the application u/s. 21(1)(a) was liable to be rejected because of sub -clause (ii) of third proviso of Section 21. According to him as petitioner had applied for the release of the building for residence and for carrying on the profession of medicine it was contrary to sub -clause (ii). It was also observed half heartedly that a major portion of the accommodation was required by petition for business purpose and the accommodation which had come into her possession being sufficient for her requirement the application was liable to be dismissed. In order to appreciate the correctness of view expressed by appellate authority on sub -clause (ii) it is extracted below: (ii) in the case of any residential building, for occupation for business purposes; It obviously carves out an exception and restricts the right conferred on landlord u/s. 21 of the Act. It has, therefore, to be construed strictly. Nothing should be added to it to enlarge its scope. Its construction should be restricted to what is reasonably conveyed from the words used by it. Keeping these principles in mind one is immediately struck that the bar created by this sub -clause is against conversion of a residential building into business purposes. It does not even remotely suggest that an application for release of residential building for both residence and business purposes is not maintainable. In other words the bar is only in those limited cases where a residential building is needed for business purposes. And rightly so. Business has been extended by rule (2)(6) to mean profession, trade or calling. Therefore, Doctors, Lawyers, Chartered Accountants, consultants etc. are covered in it. It is common knowledge that normally such professionals in our State carry on their private practice from the house in which they reside. Can it be said from use of the words of the Section or from surrounding circumstances or on any principle that Legislature intended to include in it even if the application was for release of a building both for residential and business purposes. In various sections building or its part or whole building has been used but the Legislature significantly avoided use of any such word. The conclusion, therefore, is inescapable that bar applies only if the landlord intends to convert the entire residential building for business purpose. It is argued that dominant purpose of petitioner being for business purpose the proviso was applicable. This court has no doubt observed in Dr. B.N. Joshi v. II Addl. District Judge, 1985 A.R.C. 206, 'that while considering whether the bar under clause (ii) of the first proviso applies or not the criteria which has been adopted to resolve this controversy is what is the dominant purpose which determines the nature of the building,' This test has been developed only with a view to guard against unscrupulous landlords who may make out a pretext for release. But the test of dominant purpose may not be needed in a bona fide application. For instance in this very case petitioner has no other house. She and her husband have retired from service. But they being professional intend not only to live but carry on their medical profession as well, could there be a more genuine application. Even if the petitioner's house would have been a small one and he would have opted to live in a small portion and devote the remaining and major portion for professional use the application could not be thrown out. It is not the user of major or minor portion of the house for professional use which should in the least weigh for deciding if the application was hit by the proviso. In Chunni Lal v. Addl. District Judge, Farrnkhabad and others, 1979 (1) A.I.R. C.J. 23, it was held by this Court that where a person requires a house for residence as well as for his office the application could not be thrown out as being one for business purposes'. The same view was taken in R.L. Kastoori v. III Addl. District Judge, 1979 (1) A.I.R.C.J. 272. The appellate authority, therefore, committed an error of law in rejecting the application as barred by sub -clause (ii) of the third proviso.
(2.) FOR the petitioner it was urged that if the application was not barred by sub -clause (ii) of the first proviso then the application of the petitioner was liable to be allowed. According to him the opposite party having acquired a house he could not contest the application filed by petitioner, in view of sub -clause (1) of the Explanation which runs as under: - - (i) Where the tenant or any member of his family (who has been normally residing with or is wholly dependant on him), has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this Sub -section shall be entertained. According to opposite party he did not have any house in his possession which could attract the applicability of the application. He relied on the allegations made in his behalf before the prescribed authority. According to him as he had transferred the premises in favour of one Y.K. Chug he was not the owner and, therefore, he could not be considered to be a person who has acquired any vacant accommodation. The argument is without substance. It is admitted in the affidavit and the application filed on behalf of opposite party that he had applied for a house in a Higher Income Group which was allotted to him in Kanpur by Kanpur Development Authority. It is stated that finally when the allotment was made he could not pay the consideration to the Kanpur Development Authority and, therefore, he approached Sri Chug and deposited the amount on his behalf. It is very difficult to accept this statement as it is admitted that he deposited the entire amount with Kanpur Development Authority and the authority issued receipt in his name and the certificate for delivery of possession was also issued in name of opposite party. The Prescribed authority was justified in inferring that it was only an excuse. Learned counsel for opposite party urged that Sri Chug has filed affidavit in this Court. It may be so but the circumstances speak for themselves. It is clear that the house was purchased by opposite party and he is owner of it. The claim of transfer in favour of Sri Chug is not substantiated. The appellate authority had also not set aside this finding. Learned counsel for opposite party urged that even if Explanation applied it could not automatically result in allowing of the application for release. The petitioner had yet to satisfy the basic requirement of Section 21(1)(a) that is her need was bona fide. And according to him as appellate authority had held that need of petitioner was not bona fide and that being a finding of fact howsoever shaky the application was liable to be dismissed. The submission is devoid of any merit. The appellate authority having erroneously decided the question of law observed in that context that need of petitioner was not bona fide. The finding is vitiated because it is not based on material on record. It was as a result of his views on sub -clause (ii) to the proviso; As that could not be taken into account the finding is based on irrelevant consideration. Then the appellate authority did not set aside the finding of prescribed authority that sub -Clause (i) of Explanation to Section 21 applied. Therefore, the objection of opposite party could not have been examined. The question of bona fide need was to be decided on petitioner's allegations and evidence alone. In the circumstances it is expedient to direct the appellate authority to decide the appeal afresh.
(3.) LEARNED counsel for the petitioner urged that Explanation (iv) as it existed, on the date when the application was filed was applicable to the petitioner's case. According to him as petitioner had come into occupation of one of the portion and his need was found to be bona fide his need for the remaining portion could be deemed to be bona fide. Reliance is placed in this regard on paragraphs 10, 11 and 12 of the application. Learned counsel for opposite party has produced an uncertified copy to show that these allegations were not raised in the original application. To that extent he is right and the petitioner probably did not raise before the Prescribed authority or appellate authority as the view taken by this Court was that after deletion of Explanation (iv) it could not be taken advantage of. But in view of the decision of Supreme Court in Kailash Nandan Prasad v. Additional District Judge, Moradabad and others, 1984 (2) A.R.C. 1, the position has substantially changed. As right of the parties has to be decided on basis of facts as it existed before the Explanation was deleted the point is now not only to be entertained but its investigation has become necessary. As the facts on this aspect are not clearly available on record, it is expedient that the appellate authority may examine this as well. In the result this petition succeeds and is allowed. The order passed by the appellate authority is quashed. The appellate authority is directed to decide the appeal afresh in the light of the observations made above. The appeal shall be decided within a period of three months from the date the copy of the order is produced before it. Parties shall bear their own costs.;