R.H. ZAIDI, J.

Instant petition. under Article 226 of the Constitution of India, arises out of the proceedings under Section 21 (1) (a) of the U. P. Urban Buildings (Regulation of Letting. Rent and Eviction) Act, 1972, (hereinafter referred to as the Act), and is directed against the order passed by IInd Addl. District Judge, Ghaziabad. dated 20-12-90 acting as appel late authority under Section 22 of the Act, allowing the appeal of the tenant-respon dent No. 3 and dismissing the release ap plication.

2. Facts of the case, in brief, are that the petitioner-Landlord applied for the release of the shop in question which is situated on the ground floor in House No. 106. Mohalla-Kanzimal, Ghaziabad, which was oc cupied by Dr. Har Prasad, the respondent No. 3 as tenant.

3. It was pleaded that the petitioner used to carry on the business of sale of agricultural seeds in the name and style Krishi Beej Bhandar in shop No. 181. With a view to augment his income he wanted to settle his son Satish Kumar, who was graduate but unemployed, in the business of general merchant and cloth. Except Shop No. 181 which is situated in his residential house, rest of the house was being used for residential purposes. It was stated that the need of the petitioner was bona fide and genuine and in the event the release applica tion was rejected, he would suffer compara tively greater hardship.

4. It was also pleaded by the learned Counsel for the petitioner that on the other hand opposite party- respondent No. 3 was aged about 70 years and was a well to do person. His children were all settled and he could easily shift his clinic from the shop in Dispute to his own house built in Kavi Nagar without any inconvenience or hardship. It was also pleaded that other shops were also available in the locality, Respondent No. 2, thus, would not suffer any hardship if the release application was allowed.

5. The release application filed by the petitioner was objected to and opposed by the tenant-respondent No. 2 who pleaded that in the same building i. e. house No. 106 one room, on the ground floor situated on the back side, was lying vacant which was being used as godown by the petitioner. The proposed business could be established in the said room by Satish Kumar. The Shop which was in occupation of the landlord could also be partitioned and a portion of which could be given to Satish Kumar. Satish Kumar also owned a house in Nehru Nagar and a portion of the same was being used for carrying on the business of Cement & Biscuit Agencies by Satish Kumar. The need, set up by Landlord was, therefore, neither genuine nor bona fide and in the event the application was allowed, respon dent No. 3 will suffer comparatively greater hardship.

6. The parties in support of their respective cases filed evidence oral and documentary. The Prescribed Authority after hearing the parties and perusing the record was pleased to hold that the need of the petitioner for settling his son Satish Kumar in the business of general merchant & cloth was bonafide and genuine. The question of comparative hardship was also decided in his favour and the release ap plication was allowed vide its order dated 13-11-87.

7. Respondent No. 3 aggrieved by the order passed by the Prescribed Authority preferred an appeal before the appellate authority under Section 22 of the Act. The appellate authority reversed the findings recorded by the Prescribed Authority and allowed the appeal by its Judgment and order dated 20-12- 1990. The petitioner thereafter filed the present petition chal lenging the validity of the order passed by the appellate authority as stated above.

8. I have heard learned counsel for the parties.

9. Mr. S. N. Gupta, Senior Advocate, assisted by Shri Vishnu Sahai and Mr. B. Dayal, Advocate, vehemently urged that the appellate authority without taking into con sideration the reasons recorded by the Prescribed Authority and without taking into consideration the facts and the evidence which were taken into considera tion by the Prescribed Authority and without critically examining the findings recorded by the Prescribed Authority il legally substituted his own findings on the question of need and hardship. The judg ment and order passed by the appellate authority was, therefore, liable to be set aside. It was further urged that entire house No. 106 except the shop in dispute was being used for residential purposes, it was, there fore, not open to the appellate authority to hold and suggest that the rare portion of the residential building could be used for the business purposes. Learned counsel for the petitioner further urged that the appellate authority did not apply its mind to the suitability of the room marked by letters O. P. Q & R in the Commissioners map for the purposes of establishing proposed

busi ness and it was arbitrarily held that Satish Kumar can establish and carry on his busi ness in the said room.

10. The submission of the learned counsel for the petitioner was that the aforesaid room was neither suitable nor the same could as used for establishing the proposed business.

11. On the other hand Mr. Ravi Kiran Jain, Senior Advocate, assisted by Mr. R. B. D. Mishra submitted that the findings recorded by the appellate authority were findings of fact which were based on relevant evidence on the record and could not be challenged under Article 226 of the Constitution of India. He further submitted that the appellate authority has perused the relevant evidence on the record and rightly reversed the findings recorded by the Prescribed Authority.

12. I have considered the rival submis sion made by the learned counsel for the parties and also carefully perused the record.

12. I have considered the rival submis sion made by the learned counsel for the parties and also carefully perused the record.

13. It is evident from the order passed by the Prescribed Authority that it was pleased to hold that entire house No. 106 was residential including the back portion, except the shop in dispute. A reference in this regard may be made to the findings recorded by the Prescribed Authority (at page No. 49 of paper book) which is quoted below:

@hindi = Hindi Matter

14. Legally a residential building can not be released for business purpose as would appear from clause (ii) of third proviso to sub-section (1) of Section 21 of the Act which reads as under:

"provided also that no application under clause (a) shall be entertained -

(i). . . . . . . . .

(ii) in the case of any residential building, for occupation for business purposes;"

15. It is well-settled in law that neither a residential portion can be released for business purposes nor a release application can be rejected on the ground that any por tion of residential building could be utilized for business purpose and the authorities have got no jurisdiction to reduce the availability of residential building by direct ing a portion of the residential building to be used for business purpose. A reference in this regard may be made to the decision in Prem Prakash Gupta & others v. IInd Addl. District Judge, Allahabad, 1993 (1) ARC 77 wherein it was held as under :

"the policy and the object behind Section 21 of the U. P. Act No. XIII of 1972 is for the benefit of the landlord, there can be no manner of doubt that the intention has been not to reduce the availability of the residential accommodation. Sub-clause (ii) of the third proviso to Section 21 prohibits release of any portion of residential ac commodation for business purpose. This provision re-enforces the above aspect. When an accommodation in the occupation of a tenant which is being utilised for residential purpose can not be allowed to be used for business purpose and a released on this account, then can be arise any question of compelling a landlord to convert a part of the residential building in his occupation for use of business purpose and refuse the grant of release on the ground that a part of the residential accommodation can be utilised for business pur pose compelling thereby the reduction of residen tial accommodation contrary to the policy under lying the provisions contained in Section 21 of the Act. "

16. Further by this Court, relying upon the aforesaid decision m Prem Prakash Guptas Case (supra), in Jagdish Prasad v. IXth Addl. District Judge, Kanpur, 1993 (2) ARC 63, it was held as under:

"further, so far as the garage is concerned, suffice it to say that on the findings recorded by the Appellate Authority this accommodation is being utilised as a garage. It is also not disputed that the garage is a part of the residential accommodation. If under compulsion the portion of the garage was being utilises the appeardly for doing some busi ness that could not come in the way the release sought for. It may further be noticed in this con nection, that taking into consideration, the policy underlying the U. P. Act No. 13 of 1972, the landlord cannot be compelled to use the portion of the residential accommodation and thus reduce the availability of the residential accommodation. This position was clarified by this Court in its decision in the case of Prem Prakash Gupta and others v. IInd Addl. District Judge, Allahabad and others, reported in 1993 (1) A. R. C. 77. "

17. It may be noted that the finding recorded by the Prescribed Authority that entire house No. 106 except the shop No. 181 was being used for residential pur poses (including the room situated in the back portion) has not been reversed by the appellate authority and the release ap plication has been rejected on the ground that the said room could be used for the purpose of establishing the proposed business by Satish Kumar, son of the petitioner. The order passed by appellate authority is, thus, manifestly erroneous and illegal.

18. Learned Counsel for the petitioner is also right in submission that the appellate authority has acted illegally in not taking into consideration, the question is as to whether the room situated in the back por tion of the residential building which was suggested for establishing the proposed business by the petitioner was suitable for the said business.

19. Honble Supreme Court while in terpreting clause 13 (3) (v) of C. P. & Berar Letting of Houses and Rent Control Order (1949) in Dr. M. K. Salpekar v. Sunil Kumar Shamsunder Chaudhari and others, AIR 1988 SC 1841 [LQ/SC/1988/390] , was pleased to observed as under:

"when a Court is called upon to decide whether another building available to the tenant can be treated as alternative accommodation, it has to consider whether the other building is capable of reasonably meeting the requirements of the tenant on his vacating the disputed premises. "

20. In Pitamber Lal Gupta v. Bankey Lal and others, 1978 ARC 17, it was held by this Court as under:

"the alternative premises must be such where the business could be carried on by the petitioner. The State Government again appears in favour of the respondents No. 1 and 2 and without discussing the evidence on the said ques tion, held that the premises No. 27/33, Katra, Allahabad could be used by the petitioner for carrying on his business. The State Government ought to have considered the evidence of the petitioner which was to the effect that the same was not suitable for the purposes of doing the business. "

21. This Court further in the case of Ram Swaroop Gupta v. IIIrd Addl. District Judge & others, 1978 (U. P.) RCC 446 was pleased to observe as under:

"mere availability of an accommodation is not enough. Whether it is adequate for the nature and the requirement of the business to be carried on as also the location of that accommodation are important circumstances. The floor space on available in the alternative accommodation may also form an important consideration depending on the nature of business carried on. "

22. In the present case, the room which has been held to be alternative accommoda tion for purpose of establishing the proposed business i. e. (general merchan dise and cloth by Satish Kumar is not situated on the road side but in the back portion of the house. From the map on the record it is apparent that the said room is not visible from the road side, for reaching the said room one will have to first enter into Varandah thereafter the galary, on both sides of which the latrine and bath-room are situated, thereafter small open Sahan and then the room. It is, thus, apparent that it is not easily accessable or approachable; the same, therefore, cannot be held to be an alternative or suitable building for estab lishing the shop for the aforesaid purposes. The appellate authority has manifestly erred in completely ignoring the relevant factors and arbitrarily hold that the said room would be utilised for establishing the proposed business and was sufficient to satisfy the need of the Landlord.

23. It was held by the Prescribed Authority that the cement agency held by Satish Kumar was surrendered by him. Satish Kumar was only a co-owner of the premises situated at Nehru Nagar and a portion of which was also occupied by tenants. The shop in which the petitioner used to carry on his business as business of sale of agricultural seeds was of the size of 10. 5" x 8". It was incapable of being parti tioned while considering the case of respon dent No. 3 it was also held that he was 70 years old retired Medical Practitioner (now 80 years old) used to get Rs. 720/- per month as pension. His 3 sons were engineers one of them in abroad. He already solemnized the marriages of all his children and had no liability on his shoulders. He had 2 storeyed house near the shop in dispute in which 2 shops were vacant to which he could shift his business arid his son Lokesh was used to workwith him as compounder.

24. A bare perusal of the order passed by the appellate authority shows that he did not take into consideration the factors which were taken into consideration by the Prescribed Authority in arriving at the find ing on the question of need and hardship in favour of the petitioner. The appellate authority did not examine the findings recorded by the Prescribed Authority criti cally. No reasons have been recorded for upsetting the said findings. He has virtually acted as the Prescribed Authority and sub stituted his own findings for the findings recorded by the Prescribed Authority. The judgment and order passed by the appellate authority in my opinion is in violation of sub-section (7) of Section 34 of the Act, which provides as under:

" (7) The District Magistrate, the Prescribed Authority or (the appellate or revisional authority) shall record reasons for every order made under this Act. "

25. In Ram Niwas Pandey v. VIIIth Addl. District Judge, Kanpur & others, 1982 ARC 246, it was held that:

"the appellate court was recording a finding of reversal as such it was to take into consideration all the relevant facts & factors, which were taken into consideration by the Prescribed Authority. "

26. In Mohd. Nanhey Mian v. IVth Addl. District Judge, Aligarh, 1982 (2) ARC 527, it was ruled by this Court as under:

"the lower appellate Court appears to have made a mess of the entire things, it after citing certain cases, came to an abrupt conclusion that prima facie the need of the son of the landlord was established. When he was reversing the judgment of the Prescribed Authority, it was incumbent upon him to meet the reasons recorded by the Prescribed Authority, while deciding the case. "

27. Similarly in Mahabir Jain v. 1st Addl. District Judge, Jhansi & others, 1985 (1) ARC 368, it was held that:

"actually, if one sees the judgment of the lower appellate court closely there is no escape from coming to the conclusion that the finding recorded by the Prescribed Authority has not been specifically set aside. It cannot be doubted that in case the finding recorded by the Prescribed Authority remains, the application moved by the landlady under Section 21 of the Act, would be liable to be dismissed as there would no bonafide requirement for the shop in dispute. "

28. Relying upon the aforesaid decisions in Civil Misc. Writ Petition No. 11505 of 1983, Gyan Chandra v. Addl. Dis trict Judge, Budaun, it was held as under:

"thus is view of the law laid down by the Supreme Court and this court and in view of the aforesaid statutory provision, every order passed by the authorities must contain reasons, what to say, an order or reversal, where it is incumbent upon the appellate and revisional authorities to record reasons for reversing the findings recorded by the authorities below. "

29. The appellate authority has, on the other hand, given undue importance to the apparently bonafide typing error in the af fidavit of Pramod Kumar and Anil Kumar wherein Satish Kumar was described as son of the deponent and illegally discarded the same and arbitrarily arrived at the finding that the need of the petitioner for the shop in dispute was not genuine.

30. It is correct that the findings recorded by the appellate authority are find ings of fact but in view of what has been stated above the said findings are not only manifestly erroneous and perverse and are liable to be ignored. It is correct that the appellate authority has got the jurisdiction to set aside the findings, even of fact, recorded by the Prescribed Authority; but it has got no jurisdiction to set aside the find ings arbitrarily and without critically ex amining them and without taking into consideration the relevant factors which were taken into consideration by the said authority. The Appellate Authority cannot act arbitrarily. It is bound to record reasons for upsetting the findings of the Prescribed Authority and for recording its own find ings.

31. In view of the aforesaid discussions, the writ petition deserves to be allowed. The writ petition succeeds and is allowed. The judgment and order dated 20-12-1990 passed by the appellate authority is quashed. The case is sent back to the appel late court for decision afresh in the light of the observations made in the judgment. It is further observed that the appeal shall be decided within 2 months from the date a certified copy of this order is produced before respondent No. 2. Costs easy.

Petition allowed.