JUDGMENT Hon’ble Sunil Ambwani, J.—Heard Shri A.K. Gupta, learned Counsel for the petitioners. 2. Notices were issued to the respondent Nos. 1 and 2 on 28.10.2006. The office submitted a service report on 18.12.2006, informing the Court that neither acknowledgement nor undelivered cover have returned back after service. The Court allowed the petitioners to take steps to serve the respondents by publication in newspapers. In compliance thereof, the petitioners have carried out publication in daily newspapers ‘Dainik Jagaran’ published from Allahabad on 21.2.2007. The service on respondents is held to be sufficient and the matter was heard. 3. The petitioners purchased the premises in dispute bearing Municipal No. 15 Lajpat Rai Road, New Katra, Allahabad, by registered sale deed dated 20.12.1976. Shri Ramesh Chandra Bari-respondent No. 1 was the tenant of a room measuring 12’x10 and a chabutara on the monthly rent of Rs. 20/-. He was occupying the room as a tenant since before the purchase of the premises. The petitioners filed an application under Section 21 (1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 (in short the Act) on 26.4.1996, for release of the premises to settle the three unemployed sons of applicant No. 1 to start business. The applicant No. 1 stated that he had retired on 31.3.1987 and that he also wants to do some business from the room in dispute. The need to settle the son of Shri Arjun Prasad Yadav, joint owner of the premises was also set up in the application for release. 4. The petitioners alleged that Shri Ram Chandra Bari-the tenant is running a tea shop in the disputed premises. He mostly resides at Pratapgarh and does not do any business. 5. In the written statement, the tenant alleged that the house owned by the landlord namely house No. 587A/777, Mumfordganj, Allahabad consists of seven rooms, and that house No. 46/10 Ganesh Nagar, Muirabad, Allahabad consists of five rooms on the ground floor and five rooms on the first floor. All the sons of the applicant No. 1, are already working and that none of them are unemployed. One son of applicant No. 2 is running dairy business in the name of ‘Nutan Dairy’. The premises in dispute are occupied by the members of his family for residence for last 50 years and that he is also selling the tea from the disputed premises. 6. One son of applicant No. 2 is running dairy business in the name of ‘Nutan Dairy’. The premises in dispute are occupied by the members of his family for residence for last 50 years and that he is also selling the tea from the disputed premises. 6. The Prescribed Authority allowed PA Case No. 9 of 1996 with the findings that the landlords have bonafide need to settle their sons in the business. Shri Arun and Shri Anoop, both sons of Shri Saryu Prasas Yadav and Shri Chandra Bhushan are unemployed and that the accommodation in their possession for residence is not sufficient for occupation of residence as well as the business. The house was purchased to settle the sons in the business. It was further found that all the daughters of the tenant are married. The tenant is running the tea shop on an open portion outside the disputed premises. He can sell the tea in any other place or in a gumti after obtaining licence from the Nagar Mahapalika. He has only two chaukies, two or three tables under a tripal (cover) for running a tea shop which can be dismantled and placed anywhere else. He will not therefore suffer greater hardship than the hardship to be faced by the landlord, if their sons continue to be unemployed. The release application was allowed on 31.3.1999. 7. The tenant filed an appeal in which an amendment application, was filed to amend the plaint to the effect that the tenant-appellant is using the premises in dispute for residence and that only a part of the front portion is used for business. The amendment was rejected on 10.7.2003. The appeal filed in the year 1999 was pending for a long period of time. The petitioner-landlord filed a Writ Petition No. 45873 of 2006 in which notices were issued asking the Presiding Officer to explain as to why the Rent Control Appeal is pending in his Court for six years. The appellate Court heard the matter and allowed the appeal on 27.9.2006 on the ground that the predominant user of the premises in tenancy is residential. The user of small portion of the accommodation in front of the room for selling tea will not convert the user to commercial purposes. The appellate Court heard the matter and allowed the appeal on 27.9.2006 on the ground that the predominant user of the premises in tenancy is residential. The user of small portion of the accommodation in front of the room for selling tea will not convert the user to commercial purposes. Clause (iii) of third proviso to Section 21 (1)(a) of the Act provides that no application under clause (a) shall be entertained in a case of any residential building for occupation for business purposes. The application as such was not maintainable. The appellate Court has relied upon the judgments in Bashir Uddin v. District Judge, Bulandshahr, 1978 (2) ARC 369; S.K. Banerji v. Surendra Narain Mishra, 1990 (1) ARC 144 in holding that in law any accommodation, which is residential, cannot be let out in release for starting commercial activities. 8. The appellate Court further found that the dominant purpose of the premises let out to the tenant is residential and that he was using a small portion in front for running a tea shop to sustain his family. 9. Learned Counsel for the petitioner contends that the Presiding Officer of the appellate Court was annoyed with the order passed by the High Court seeking explanation from him for delay in deciding the application. He was as such finding out a pretext to allow the appeal. Shri A.K. Gupta submits that it is not possible for husband, wife and six children to live in one room without a kitchen and toilet and to carry out business, as well, to sustain the family. He submits that the appellate Court acted grossly arbitrarily. The release application could not be rejected on such a flimsy ground. 10. In Bashir Uddin’s case (supra), this Court, ruled that where a washer man was using the room in his tenancy for residence and was also using a part of the room for washing cloths and ironing, the dominant user of the accommodation would still be residential. This view has been consistently followed in the subsequent decisions. 11. The Courts of law cannot ignore the bitter fact that almost one-third population of the country is still living below the poverty line. The poor living in cities are either residing in slums and hutments. The fortunate amongst them have small tenaments. This view has been consistently followed in the subsequent decisions. 11. The Courts of law cannot ignore the bitter fact that almost one-third population of the country is still living below the poverty line. The poor living in cities are either residing in slums and hutments. The fortunate amongst them have small tenaments. In most of these cases, these tenaments consist of only one room in which entire family lives and also carries out some occupation, business or trade like washer-man, cobbler, tailoring, embroidery, embossing, carpentry etc. In most of these tenaments there are no kitchens and toilets. The food is cooked in a small portion of the room and the occupants used public amenities for bathing and toilets. In all such cases the dominant use of the tenaments would still be residential. The user of small portion of the tenament or a portion of the room for any occupation will not change user of these tenaments. 12. In the present case, there was no suggestion given by the landlord nor there was any challenge to the findings recorded by the Prescribed Authority that the family of the tenant is using the room for occupation as residence and that a part of the accommodation in front was used for selling tea. In the appeal also the landlord neither gave any suggestion nor provided the residential address of the tenant. He did not establish that the tenant is living at District Pratapgarh and is using the accommodation only for the purposes of selling the tea. The finding of the appellate Court, that the room was used by the family for residence and that part of it in front was raised for selling tea, is a finding of fact, which does not call for interference from this Court. 13. The application filed by the petitioner for release of residential accommodation for settling their sons in the business was as such not maintainable. The writ petition is dismissed. ————