JUDGMENT : S.J. HYDER, J. 1. This writ petition has been filed by the tenants and they pray that this Court may issue a writ of certiorari quashing the order of the III Addl District and Sessions Judge, Gorakhpur passed on December 6, 1978 in an appeal u/s 22 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 hereinafter referred to as 'the Act.' 2. The dispute in the case relates to about 2/3rd portion of a house, 1/3rd portion of which is in the occupation of the landlords who are arrayed as opposite parties Nos. 3, 4 and 5. The District Judge has applied Explanation (i) appended to Section 21 of the Act and reversing the judgment of the Prescribed Authority has held that since the Petitioners have constructed a multi-storeyed residential building at Nautanwa Bazar where the building in dispute is situated, no objection to the landlords' application for the release of the building can be entertained. He has held that the building in dispute is bonafide required by opposite parties Nos. 3, 4 and 6 for their personal residence and that it is unnecessary to compare the respective needs of the Petitioners and the landlords. 3. Learned Counsel appearing for the tenant Petitioners has raised two fold arguments against the validity of the said order. In the first place, he has submitted that the user of the accommodation at the inception of the tenancy or its nature is wholly irrelevant in applying the provisions of Explanation (i) to Section 21. According to him the use to which the building was actually put at the time of the making of the application should have been taken into account in deciding the question. According to him, at the time of the presentation of the application, the building was being admittedly used for business purposes and it was necessary for the District Judge to compare the respective needs of the parties uninfluenced by the provisions contained in Explanation (i) to Section 21 of the Act. He next submitted that the newly constructed house belongs to the Petitioner's sons who were not residing with them and were not dependent on him and the construction of the said building did not attract the application of Explanation (i) of Section 21 of the Act. 4. He next submitted that the newly constructed house belongs to the Petitioner's sons who were not residing with them and were not dependent on him and the construction of the said building did not attract the application of Explanation (i) of Section 21 of the Act. 4. Before proceeding to examine the arguments addressed on behalf of the parties, it would be appropriate to quote the crucial explanation of Section 21 of the Act on the interpretation of which, the decision of the case will rest. The said explanation reads as under: (Explanation quoted--Ed.) 5. From the perusal of the said Explanation, it would appear that two things are required to be proved before a landlord can avail of its benefit Firstly, the application u/s 21 should relate to a residential building' In the second place, the tenant or any member of his family who has been normally residing with or is dependent on him has built or otherwise acquired in vacant state any other building in the same city etc. If both these conditions are satisfied, the tenant's objection against the application is totally barred and he can not be permitted to oppose the claim made by the landlord. 6. The principle behind the explanation is not far to seek. It is in fact complimentary to Sub-section (3) of Section 12 of the Act. The said section deals with the question of deemed vacancy. Sub-section (3) of that Section lays down that in the case of a residential building, if the tenant or any member of his family builds or otherwise acquires in a vacant state or gets vacated a residential building, in the same city, municipality, notified area or town area in which the building under his tenancy is situate, he shall be deemed to have ceased to occupy the building under his tenancy. Section 12 thus creates a legal fiction by invoking which building which is actually not vacant is considered to be vacant and becomes allotable to a prospective tenant or can be released in favour of the landlord u/s 16 of the Act. The reason for creating this legal fiction and the purpose behind it shall be dealt with later in this judgment. 7. The reason for creating this legal fiction and the purpose behind it shall be dealt with later in this judgment. 7. If a building which is not actually vacant can be deemed to be vacant and may be either allotted to a prospective tenant or released in favour of the landlord in certain circumstances, there is no good reason why under the same circumstances, the tenant should be permitted to oppose an application moved by the landlord u/s 21 of the Act. The moment the existence of the relevant circumstances is proved, the tenant loses the right to occupy the building and an order of his eviction must follow provided the landlord is able to prove that the building is bonafide needed by him for his personal use. The same effect is produced by reading Section 12 and Section 16 together as is produced by an application moved u/s 21 along with Explanation (i) of the said Section. In either case, the only question to be considered is about the bonafide need of the landlord. The need of the tenant in either case is an irrelevant consideration. The only difference discernible between the two sets of provisions is that in case falling u/s 12 read with Section 16, the forum of determination is the District Magistrate and his Order is revisable by the District Judge on the grounds mentioned in Section 18. In a case falling u/s 21, the forum is that of the Prescribed Authority and against his order an appeal is permitted u/s 22. Why two different forums and two different procedures find place in the Act to meet the same situation is a matter for the consideration of the Legislature. 8. To take up the second submission urged on behalf of the Petitioners, it may be stated that the Appellate Authority has recorded a categorical finding of fact that the Petitioners have erected a double storyed house in the locality in which the disputed accommodation is situate. The said finding is based, apart from other evidence, on the admission made by the Petitioners in their objection in the previous proceedings inter-parties. The said proceedings were dismissed in default and were not decided on merits. The finding recorded by the court of appeal is a finding of fact and cannot be said to be perverse. The said finding is based, apart from other evidence, on the admission made by the Petitioners in their objection in the previous proceedings inter-parties. The said proceedings were dismissed in default and were not decided on merits. The finding recorded by the court of appeal is a finding of fact and cannot be said to be perverse. The second submission urged on behalf of the Petitioners in support of this petition must, therefore, fail. 9. The first ground urged against the impugned order requires a clear examination and is not free from difficulty. The placid pace of life in this country was violently shaken by two important events. The first event was the Second World War. The other was the Independence of the country in 1947. The prices started spiraling soon after the beginning of the hostilities in the year 1939. The pace of production also received an impetus and people from the country side started gradually, tracking into the cities. The process was accelerated, after independence when the pace of development quickened. This was the inevitable concomitant, when the country shed its colonial garb. These two events led to a paucity of accommodation in the cities and towns and unscrupulous landlords lost no time in taking advantage of the situation. The British Government recorded to the situation half-heartedly and promulgated certain orders for the protection of tenants under the provisions of the Defence of India Rules which were then in force. Subsequently, the U.P. Legislature stepped in and passed the U.P. (Temp.) Control of Rent and Eviction Act, 1947 (Act 3 of 1947) which was extended from time to time until it was repealed by the Act in the year 1972. 10. The Act of 1972 is a more comprehensive attempt to meet the challenge posed by the socio economic transformation which is continuing relentlessly. In this Act, an attempt has been made to reconcile and protect the interest of the landlords and the tenants. It is not necessary for the decision of this case to refer to all the facets of the problem. Suffice to say that some tenants who were in occupation of building considerably prospered and built houses for themselves without relinquishing the possession of the building which was in their tenancy. It is not necessary for the decision of this case to refer to all the facets of the problem. Suffice to say that some tenants who were in occupation of building considerably prospered and built houses for themselves without relinquishing the possession of the building which was in their tenancy. Sometimes they let out the buildings newly erected by them at an exhorbitant rate and continued to occupy the old tenants as tenants at low rents on account of the umbrella provided by the U.P. (Temp.) Control of Rent and Eviction Act, 1947. It was to meet this situation which, on the face of it, was highly unjust that Sub-section (3) of Section 12 and Explanation (i) of Section 21 of the Act were brought on the Statute book. 11. With the above prefatory remakes, one may now proceed to the examination on the first contention urged in support of this writ petition. It is the common case of the parties that at the time of the making of the application, the Petitioners were carrying on whole sale business in grain in the accommodation in dispute while their residence was in the newly constructed house. At the same time the Appellate Authority has held that only residential building was originally let out by the predecessors in interest of opposite parties Nos. 3 and 4 and 5 to the Petitioners. It has further come to the conclusion that the building in dispute possesses all the characteristics and amenities which are generally found in a residential building. The question then is as to what test is to be applied for coming to the conclusion that the building in dispute is a residential building or a building used for commercial purpose. 12. On behalf of the Petitioners, it has been strongly contended that whatever may have been the purpose of the original letting, at the time of the making of the application, the building was being used for commercial purpose and as such, the only test which should be invoked for the purpose of this enquiry is the 'purpose test', in support of his contention, he has placed reliance on a Single Judge decision of this Court, Brahma Shanker v. Addl. Distt. Judge 1978 AWC 617 Similar argument was raised in the case of Busching Schmitz Private Limited Vs. Distt. Judge 1978 AWC 617 Similar argument was raised in the case of Busching Schmitz Private Limited Vs. P.T. Menghani and Another, AIR 1977 SC 1569 , but was rejected by the Supreme Court. 13. The expression 'residential building' has not been defined in the Act. On first principle it is difficult to comprehend why the building which has been constructed for residential purpose and has all the characteristics of such a building will fall outside the ambit of this expression merely because it is being used at a given moment for a different purpose. If the contrary proposition is to be accepted, a landlord may, by the mere fact of letting, take out the building of the purview of the residential building and convert into a non residential building. At all events, the tenant by his unilateral act is wholly incapacitated from converting a building which he had taken for residential purposes into a non residential building by using it for commercial purposes. The 'purpose test' which has been invoked on behalf of the Petitioners is, in the opinion of this Court, wholly inadequate and, if accepted, will totally stultify the provisions of the Act. 14. In order to determine whether a building is a residential building or a non-residential building, what is to be taken into account is its structure and planning. If according-to its structure and planning, the building is meant for human habitation, it must necessarily be classified as a residential building irrespective of the user to which it may be put at a given moment. It is only on this hypothesis that the provisions of the Act can be made to serve their purpose. The proper test to be applied to determine whether a particular building is a residential building is the "functional" test. If a building possesses all the characteristics necessary to constitute a residential building there is no good reason why it should not be classified as a "residential building." 15. The view which I am taking in this matter finds support from the decision in Bushing Schmit's case (supra). Krishna Iyer, J. speaking for the court observed: A building which reasonably accommodates a residential user is a residential accommodation--nothing less, nothing else. 16. The case cited on behalf of the Petitioners relates to Clause (ii) of the third proviso of Section 21 and is, therefore, distinguishable. Krishna Iyer, J. speaking for the court observed: A building which reasonably accommodates a residential user is a residential accommodation--nothing less, nothing else. 16. The case cited on behalf of the Petitioners relates to Clause (ii) of the third proviso of Section 21 and is, therefore, distinguishable. In that case also, a Single Judge of this Court has observed that it is not open to a tenant by merely changing the user of the building to seek relief on the basis of the facts changed by Munsif without the consent of the landlord. 17. The result is that the first submission urged on behalf of the Petitioners must also be rejected. 18. In consequence, this Court finds no merit in this writ petition which is accordingly dismissed with costs.