JUDGMENT Hon’ble Devendra Pratap Singh, J.—Heard Sri Nirvikar Gupta for the petitioner and Sri A.N. Sinha, learned counsel for the respondent. 2. This petition is directed against an appellate order dated 20.4.20009 passed by the Additional District Judge, Kanpur Nagar allowing the Rent Appeal No. 4 of 1994 whereby releasing the disputed premises in favour of the respondent-landlord. 3. The respondent-landlord filed a release application No. 30 of 1990 under Section 21 (1) (a) of U.P. Act No. XIII of 1972 (here-in-after referred to as the Act) inter alia with the allegation that he had purchased the premises No. 107/46, Jawahar Nagar, Kanpur Nagar from its erstwhile owner Smt. Ram Rakhi Kaur through registered sale-deed dated 2.12.1986 where the petitioner was a tenant of a covered platform, two rooms, a small Varandah and a Kothi on the ground floor at a monthly rent of Rs. 42/- apart from taxes. It was further pleaded that the accommodation was initially let out to the petitioner by the erstwhile owner for residential requirement but subsequently the petitioner converted it for commercial purposes without consent and permission of the erstwhile owner where he was carrying on a general merchant shop and also installed a grinding machine. It was further pleaded that despite commercial activities, the nature of the residential accommodation would not change. It was further asserted that he has a family of himself and his wife, younger brothers and their wives and children for which the accommodation in his possession is insufficient and therefore, he needs it for residential purposes. It was also asserted that the petitioner can run his shop from the premises No. 107/36, Jawahar Nagar, Kanpur which he had acquired. 4. The petitioner-tenant contested the said application inter alia with allegation that his father was the original tenant of the disputed premises together with a Court yard, Varandah and a residential room in the rear of the building where the disputed premises was being utilized for commercial purposes while the Courtyard and the interior rooms were used for residential purposes but in April, 1979 the portion used for residential purposes was vacated and possession was given to the erstwhile landlord where-after he shifted to his own residential house No. 107/36, Jawahar Nagar, Kanpur and the rate of rent of the disputed premises was reduced from Rs. 50/- to Rs. 50/- to Rs. 42/- and since then he is using the disputed premises only for commercial purposes. It was also asserted that the family of the landlord consists of only three persons as his brothers cannot be considered as his family members and he has at least three rooms alongwith all attending amenities in the disputed building whereas the petitioner had no other alternative accommodation where he can carry on his business. 5. The parties led their respective evidences before the Prescribed Authority who vide judgment and order dated 12.1.1994 rejected the application with a finding that the disputed premises was being used for commercial purpose since before the purchase by the present landlord and the respondent-landlord did not have any bona fide or genuine need for the said shop. The respondent-landlord preferred an appeal under Section 22 of the Act which was also dismissed by the 5th Additional District Judge, Kanpur Nagar vide order dated 23.5.2000 upholding the finding recorded by the Prescribed Authority. 6. Both the judgments were subjected to challenge in writ petition No. 28073 of 2000 by the respondent-landlord and a learned Single Judge of this Court vide ex parte judgment dated 11.7.2007 remanded the matter to the appellate Court with a direction to issue a commission to find out whether the petitioner had acquired any alternative shop from where he could run his business without setting aside the finding of fact recorded by the two Courts below. 7. On remand, the appellate Court, after recording a finding that the tenant was running a shop in his residential accommodation, has allowed the appeal by the impugned order dated 20.4.2009 directing the petitioner to vacate the premises within two months. 8. It is firstly urged that assuming that the petitioner had acquired another premises but as it was before the enforcement of the Act, explanation 1 to Proviso of Section 21 (1) of the Act would not apply as it is prospective and applies only to acquisition after enforcement of the Act with effect from 15.7.1972. 9. In the counter-affidavit filed on behalf of the respondents, a sale deed allegedly executed in favour of the petitioner has been annexed showing that it was executed on 6.5.1970. 9. In the counter-affidavit filed on behalf of the respondents, a sale deed allegedly executed in favour of the petitioner has been annexed showing that it was executed on 6.5.1970. A Full Bench decision of this Court rendered in the case of Mangi Lal v. Additional District Judge (1989 A.R.C. 58) has held that the explanation to Section 21 (1) of the Act is attracted only to the acquisition of a building by the tenant after coming into force of the Ac, i.e. 15.7.1972. Thus, assuming that the petitioner had acquired any building but even according to the landlord it was much prior to the enforcement of the Act and therefore the explanation would not apply. 10. It is further contended that assuming that any building was acquired even after the enforcement of the Act, since release is sought of a commercial building, it would not apply as the explanation applies only to a residential building. It would be worthwhile to quote the explanation to the proviso of Section 21 (1) (a) which reads as under : “21. Proceedings for release of building under occupation of tenant.—(1) The Prescribed Authority may, on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists, namely— (a) that the building is bona fide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade or calling or where the landlord is the trustee of a public charitable trust, for the objects of the trust; *** *** *** Provided also that the prescribed authority shall, except in cases provided for in the Explanation, take into account the likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the refusal of the application and for that purpose shall have regard to such factors as may be prescribed. Explanation—In the case of a residential building— (i) where the tenant or any member of his family (who has been normally residing with or is wholly dependent on him) has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this sub-section shall be entertained; *** *** *** 11. A plain reading of the explanation to the proviso shows that it would apply only in the case of release of a residential building which is also fortified by the note appended to it. This Court in Sri Gopal v. IV Additional District Judge and others, 1978 ARC 292, has taken the same view in the following para 4 of the report. “4. It is worth noting that Explanations (i) and (ii) apply only “in the case of a residential building”. It would mean that if the dispute between a landlord and a tenant is for the release of a residential building, only in that case the landlord can take the benefit of this Explanation provided, of course, he establishes the pre-requisites mentioned therein. The said Explanation would not apply to a case of non-residential building. Consequently the landlord filing an application for release of the premises which is a shop would not be entitled to get the benefit of the aforesaid Explanation (i). In the instant case, it however, appears that the Court below lost sight of the fact that the Explanation was applicable only to a residential building and wrongly held that the question of greater hardship as required by the proviso of Section 21 was not to be considered. In coming to this conclusion the committed an error of law which is apparent on the face of the present one.” 12. In fact, the Apex Court in Shiv Singh Chak v. Baby Jain, 2008 (5) SCC 486 , has also taken the same view in the following para 8. “8. In coming to this conclusion the committed an error of law which is apparent on the face of the present one.” 12. In fact, the Apex Court in Shiv Singh Chak v. Baby Jain, 2008 (5) SCC 486 , has also taken the same view in the following para 8. “8. Explanation (i) to Section 21 (1) of the Act provides that where a proceeding for eviction is initiated by the landlord in regard to a residential building under Section 21 (1) of the Act and where the tenant or any member of his family has acquired a vacant, residential building in the same city/town are, the prescribed authority shall not entertain any objection of the tenant against the application for eviction. In effect this means that where the landlord avers and proves in any eviction proceedings relating to a residential building under Section 21 (1) of the Act, that the tenant has acquired vacant possession of a residential building in the same city/town/area, it will not be permissible for the tenant to challenge the bona fides of the landlord or put forth any hardship as a defence. But the said Explanation (i) to Section 21(1) does not apply to non-residential buildings. The Explanation to Section 21(1) starts with the words “In the case of a residential building”. As the Explanation is inapplicable to non-residential building, the bar contained in Clause (i) of the Explanation will not operate where the eviction petition is in regard to a non-residential building. But the fact that the tenant has acquired a suitable alternative non-residential building may, however, be urged as a good ground to hold that no hardship will be caused to the tenant if he is evicted from the premises let out to him.” 13. Further the Court has to examine the nature of the usage of the building at the time when the release application was filed which proposition has already been laid-down by this Court in the case of Buddha Singh v. Maiku Lal (1981 A.R.C. 289) which holds that while applying the explanation to proviso of Section 21 (1) (a), the usage of the building would have to be seen on the date of the application and without determining this aspect the explanation would not come into play. It has come on record that the previous owner Smt. Ram Rakhi Kaur had earlier filed release application with the allegation that the petitioner was running a general merchant shop in the disputed premises and there is no evidence to the contrary that this usage was ever changed. The landlord himself in the release application has admitted that at the time of moving the application, the premises was being used for commercial purposes. There is voluminous evidence on record to show that the premises was being used for commercial purpose since 1953-54. Therefore, once it is established that at time of filing of the release application, the premises was being used for commercial purposes, the explanation which applies only to residential building, would not come into play and aid the landlord. This onus of proving the usage of the building at the time of filing the application is upon the landlord as held by the Apex Court in the case of Shiv Singh Chak (Supra) but in the present case there is pleading to the contrary. 14. It is then urged that assuming that the explanation was attracted even then the landlord was required to establish his bona fide need but the appellate Court has not at all adverted itself to this aspect and after recording a finding that the petitioner was in possession of another shop, he has allowed the release application without satisfying itself that there was any bona fide need. The position that even if the explanation is attracted, the landlord would still have to establish the bona fide need, has been settled by this Court about two decades ago and has been reiterated recently in the case of Vinayak Joseph v. 6th Additional District Judge, 2009 (1) ARC 80. 15. However, it is vehemently contended on behalf of the tenant-respondent-landlord that there was no occasion for the Courts below to have recorded a finding on bona fide need because this Court in the remand order had already returned such a finding and set aside the orders of the Courts below. In the alternative, it is urged that the issue of bona fide need may be decided by this Court as all the evidence is before it or the issue may be remitted to the appellate Court by limited remand pending this writ petition. 16. In the alternative, it is urged that the issue of bona fide need may be decided by this Court as all the evidence is before it or the issue may be remitted to the appellate Court by limited remand pending this writ petition. 16. The Court has gone through remand order of this Court dated 11.7.2007 but the counsel for the respondent has failed to point out any finding to the effect that the need of the landlord has been found to be genuine and bona fide. In fact, the Court talks about comparative hardship, applicability of the explanation but it has not returned any finding as urged. It may be kept in mind that this remand order was an ex parte order passed without hearing the counsel for the tenant. In fact, from tenor of the order it is apparent that the Court was swayed by the argument that the tenants have recently acquired another shop in a residential building and it was under these circumstances, it passed the following operative portion. “In the circumstances, it would be appropriate to remand the case to the Court below to reconsider whether the respondents have acquired other shop for their business and have also another shop in his own house No. 107/36 in which they are also doing their business. The Courts below shall also issue Commission in this regard after giving an opportunity to the parties concerned within four weeks from today. If it is found that the tenants have shop in his own house and is running business there, the Court below shall pass appropriate orders in accordance with law. For the reasons stated above, the writ petition is disposed of.” 17. Admittedly, both the Courts below had returned a finding against the landlord on the issue of his bona fide need. This Court while remanding it had not set aside those findings but had left it open to the Court of remand to pass an order in accordance to law. Which, as has already been observed above, even assuming that certain accommodation was found to be in possession of the tenant, the bona fide need would still have to be established though without considering the objection of the tenant. 18. In view of the aforesaid discussion, the appellate judgment cannot be sustained and accordingly the writ petition is allowed and the impugned order dated 20.4.2009 is hereby quashed. 18. In view of the aforesaid discussion, the appellate judgment cannot be sustained and accordingly the writ petition is allowed and the impugned order dated 20.4.2009 is hereby quashed. 19. In so far as the prayer for examining the need of the landlord is concerned, this Court is not equipped with that power so as to record such a finding and further the parties may invoke the subsequent events or call for local inspection etc. therefore, the matter is remanded to the appellate Court, which is also a Court of fact, to examine this factual issue of bona fide need of the landlord and then render the judgment, keeping in mind the observations made in the body of this judgment. This exercise may be completed within two months. The parties are directed to appear before that Court on 5th July, 2010 when the Learned District Judge may fix a date for hearing. 20. The prayer of the tenant for enhancement of rent, in the facts of this case, appears to be justified. Considering the extent of the accommodation in possession of the petitioner-tenant and also considering the fact that the rent has remained freezed at Rs. 42/- per month at least from 1979, in the interest of justice the rent should be enhanced. According to the landlord, rent should be about Rs. 5,000/- per month but the contention of the tenant also appears to be justified that once the rent is enhanced beyond Rs. 2,000/- per month, it may deprive him protection of the Act as the limit fixed therein is Rs. 2,000/-. Accordingly, by agreement of both the parties, the rent is fixed at Rs. 1,900/- per month which would be payable to the landlord with effect from June, 2009, the date of filing of the petition. The arrears from June, 2009 till date should be deposited with the trial Court within eight weeks from today after adjusting the amount already paid, where-after the tenant shall pay rent at the aforesaid rate by 7th of each succeeding month starting from June, 2010. 21. In the circumstances of the case, no order as to cost. ————