JUDGMENT Satish Chandra, J. - Shri Sohan Lal, respondent No, 3, was the owner of the accommodation as well as the appurtenant land in dispute. He applied under section 21(2) of the Rent Control Act for release of the surplus land. The prayer was that surplus land appurtenant to the accommodation measuring about 400 Sq. yds. may kindly he released. He stated that the accommodation covered approximately 50 Sq. yds., while the balance about 400 Sq. yds. was lying vacant. The landlord wished to make new building in that portion. In support, he filed plans of the building as sanctioned by the municipal authorities. 2. The petitioner contested the proceedings but ultimately the Prescribed Authority allowed the application for release. It held that according to the applicant the constructed portion is 50 Sq. yds. while according to the opposite party it is 100 Sq. yds. Even if the case of the opposite party is accepted, the constructed area is lesser than half of the entire area of the plot. So the appurtenant land is surplus according to the Explanation under sub-section (2) of Section 21. The same view was expressed by the District Judge who dismissed the appeal. He held that the covered area is only 50 Sq. yds. while the appurtenant area is 400 Sq. yds. So the excess area shall be deemed to be surplus land. 3. Mr. Bhatnagar, appearing for the petitioner-tenant, urged that the landlord had built another house in Meerut where he was running his ice cream factory and was also residing and, therefore, the claim of the petitioner that he wanted the release of this surplus land in order to make constructions was unbelievable. Both the courts have believed the landlord's case. In the next place, sub-section (2) of Section 21 does not mention the purpose for which the buildings are proposed to be constructed and, therefore, the fact that the landlord mentioned the fact that he wanted to build the constructions for his residence may not now be material, yet the question for consideration is whether he needed this land for construction of buildings. The fact that the proposal is to utilise the building after construction for one purpose but ultimately it would be utilised for other purposes, would not be material for granting release of the surplus land. 4. The fact that the proposal is to utilise the building after construction for one purpose but ultimately it would be utilised for other purposes, would not be material for granting release of the surplus land. 4. Further, it was urged that the courts below have erred in not giving effect to Explanation to Sub-section (2) of Section 21. The Explanation provides :- "Where the appurtenant land including passage exceeds double the covered area of the building, the excess area shall be deemed surplus land." 5. In the present case, the Prescribed Authority did not exactly find the covered area. It held that even if the tenant's case be accepted that the constructed area is 100 Sq. yds , it would be lesser than half of the entire land of the plit, and the appurtenant land would be the surplus land. The District Judge seems to have accepted the case of the landlord that the covered area was 50 Sq. yds , while the area of the plot was 450 sq. yds.. The finding with regard to the excess area given by the District Judge is also not quite satisfactory. The District Judge seems to be under some confusion. 6. Mr. Grover, learned counsel for the landlord, submitted that the Explanation does not exclude the court from going into the facts and finding the actual surplus area. In other words, he submitted that it was open to the court to find on the circumstances of the case that whatever area may not be properly used was liable to be declared surplus land irrespective of the Explanation because the Explanation only brings about a fiction for a limited purpose. 7. The Explanation provided a measure of defining excess area which alone shall be deemed to be excess area. The measure is that if the appurtenant land exceeds double the covered area, the excess shall be deemed to be surplus land. As I read the Explanation, there is no difficulty that upto the extent of double of the covered area the appurtenant land shall not be deemed to be surplus and. The area in excess of the double the covered area would alone be surplus land. 8. In the present case, if the covered area was 50 sq. yds. then the tenant would be entitled to retain another 50 sq. yds. of the appurtenant land. This 50 sq. yds. The area in excess of the double the covered area would alone be surplus land. 8. In the present case, if the covered area was 50 sq. yds. then the tenant would be entitled to retain another 50 sq. yds. of the appurtenant land. This 50 sq. yds. could not be declared as surplus. The balance alone would be surplus land and liable to be released in favour of the landlord. Unfortunately the authorities have not given a clear finding as to the extent of the covered area and also the extent of the vacant area. In this case, it is apparent that even on the case of the tenant there would be some area which would be liable to be declared as 'surplus land'. Another question for consideration would be as to which portion of the land would be 'surplus land'. The court will consider it after giving the parties an opportunity of hearing. 9. In the result, the impugned orders are set aside and the matter is sent back to the Prescribed Authority to deal with the application for release afresh in the light of the observations made above The finding that the landlord had established his intention to construct new building on the surplus land would not be disturbed. In view of the divided success, the parties will bear their own costs.