ORDER Hari Swarup, J. -This is a tenants petition challenging the appellate order passed under Section 22 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act). The landlord moved an application under Section 3 of the U. P. Act No. 3 of 1947 in 1968. On the enforcement of Section 43 (2) (a) of the Act it was converted into an application under Section 21 of the Act and transferred to the prescribed authority for decision. The Prescribed Authority dismissed the application. On appeal the District Judge has allowed the application and directed the eviction of the tenant. 2. The Additional District Judge held that the premises in dispute were residential and the need of the landlord was not only genuine but comparatively greater than that of the tenant. Treating, however, the building as also a commercial accommodation he directed a payment of Rs. 150/- as compensation to the tenant presumably under the second proviso to clause (b) of sub-section (1) of Section 21 of the Act. 3. According to the Additional District Judge the building had to be treated as a residential building and, therefore, Explanation (i) to Section 21 of the Act debarred the tenant from raising any objection against the application for his eviction on the finding that his son had constructed another building. After holding that the Explanation was available he proceeded to consider the matter and held that the landlords need was genuine and bona fide. He also held that it may be possible for the tenant to carry on the business in the new house which his son had constructed. 4. Learned counsel for the petitioner has, however, contended that the court below was in error in applying the principles applicable to a residential building to the building in dispute as it was used not for residential but for non-residential purpose. In respect of this argument a reference is made to the following finding recorded by the Additional District Judge :- "He (landlord) is claiming release of the residential portion which has been converted into business premises later on and not the release of the shop." The question, therefore, that arises is whether a building which was originally used as residence and subsequently converted into commercial use will be treated for purposes of the Act a residential or a non-residential building? 5. 5. The tenancy in the present case had been created in 1949. It appears prima facie, that it began to be utilised for non-residential purposes with effect from the year 1956. The application under Section 3 was moved in 1968 and the present Act became applicable in 1972. Once the application is to be decided under the Act, all the provisions of that Act will become applicable. The relevant date will be the date of the application as the same has to be treated as the application under Section 21 of the Act. The Additional District Judge has not recorded the date on which the building had been converted into a non-residential accommodation. 6. Learned counsel for the landlord contended that what is relevant is not its user on the date of the application, but the purpose for which the lease had been given. It may be noted that under the Transfer of Property Act, normally, no distinction is made between the use of the building for residential and commercial purposes, it is the manufacturing purpose that makes a distinction between the manufacturing and the residential and commercial tenancies. In the present case there does not appear to be any lease deed. It was probably a tenancy created by oral agreement accompanied by delivery of possession. It was a month to month tenancy. No objection was ever raised by the landlord to the user of the building for non-residential or commercial purposes. As the tenancy was the monthly tenancy, the relevant date would be not the date of the grant of the lease but the month in which the application for eviction was made under Section 3 of the U. P. Act No. 3 of 1947. 7. Explanation to sub-section (1) of Section 21 of the Act is attracted only when the building from which eviction is sought is a residential building. If on the date of the application it was not a residential building but a commercial building then the Explanation will not be attracted and the construction of the house by the tenants son will not disentitle him from raising objections. Unless the appellate court found that on the relevant date it was a residential and not a non-residential building it could not take resort to the Explanation. 8. Unless the appellate court found that on the relevant date it was a residential and not a non-residential building it could not take resort to the Explanation. 8. Rule 16 of the Rules made under the Act provides for the considerations which a Prescribed Authority has to take into account while deciding an application under Section 21 of the Act. Sub-rule (1) of Rule 16 provides for the conditions required to be considered in case of a residential building. Sub-rule (2) of Rule 16 provides for considerations which should be taken into account while dealing with an application in respect of a non-residential building. The order of the Additional District Judge shows that he has not applied the principles laid down in sub-rule (2) of Rule 16. Learned counsel for the landlord contended that clause (b) of sub-rule (2) of Rule 16 can impliedly be deemed to have been considered. Even if it be so, admittedly clause (a) thereof has not been considered. 9. Merely because in the application the landlord said it was a residential) building it would not make it so if in fact it was being used for non-residential purposes. On the finding that it had been) converted into a non-residential building, he should have decided the controversy treating it as such. 10. The whole tenor of the judgment shows a misdirection by the Additional District Judge. He has misdirected himself in law in applying the principles applicable for consideration of an application regarding a residential building to the application in respect of a non-residential building. 11. In the result, the petition is allowed. The order of the IIIrd Additional District Judge, Lucknow is quashed and he is directed to re-admit the appeal to its original number and decide it afresh in accordance with law. In the circumstances of the case parties will bear their own costs.