Sudhir Agarwal, J.;— 1. Both these writ petitions arise out of same order i.e. dated 9th October, 2003 passed by Additional District Judge, Court No.5, Pilibhit i.e. Appellate Authority in P.A. Appeal No.10 of 1984. 2. Sardar Bulaka Singh (since deceased and substituted by his legal heir/representative namely Sri Paramjeet Singh as respondent No.1/1) was/is tenant in the premises situated at Mohalla Sunghani (Nakhas), Station Road, Pilibhit. It is a big accommodation having a total area (constructed and unconstructed)) as 37159 sq.ft., out of which residential building is in 9634 sq.ft. and rest is open land. The entire accommodation is owned by Sri Kailash Chandra Gupta, petitioner in Writ Petition No.4818 of 2004 (hereinafter referred to as "first petition") along with his brother Subhash Chandra. The petitioner (first petition) filed an application dated 21st October, 1982 under Section 21(1) and (2) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No.13 of 1972) (hereinafter referred to as "Act, 1972") for release of surplus land, area 10356 sq.ft., motor garage, servant quarter and verandah on the ground that he intend to construct an hotel in the said premises for which he has got a plan sanctioned from Municipal Board, Pilibhit vide their letter dated 7th July, 1982. 3. The application was contested by respondent-tenant in the first petition by filing written statement [copy whereof is Annexure 3 to the writ petition No.54009 of 2003 filed by tenant (hereinafter referred to as "second petition")]. 4. The application was initially rejected by Prescribed Authority vide judgment and order dated 20th February, 1984 whereagainst the landlord filed Rent Control Appeal No.10/84 which was also dismissed by Appellate Court vide judgment dated 7th December, 1984. The landlord came to this Court in writ petition No.3908 of 1985 which was allowed vide judgment dated 20th March, 2003. This Court set aside the appellate order and judgment dated 7th December, 1984 and remanded the matter to the Appellate Authority to decide appeal afresh in the light of directions contained in the said judgment. It would be appropriate to reproduce the relevant part of the judgment as under: "The explanation to the said sub section (2) of Section 21 of the Act further provides the definition as regards the surplus land appurtenant to the building. It would be appropriate to reproduce the relevant part of the judgment as under: "The explanation to the said sub section (2) of Section 21 of the Act further provides the definition as regards the surplus land appurtenant to the building. On an examination of the above provision, it is apparent that neither the financial status of the land lord nor his bonafide need is required to be examined. The intention of the above provision is clearly to provide facility for construction of either the residential accommodations or buildings for commercial purposes. The release is permissible under the said provision even if the landlord wants to divide the land into plots for sale for the purposes of construction of new buildings. Under the provision it is not necessary that release should be sought for carrying on business for self alone. The release of surplus land can be obtained even for purpose of commercial activities. Construction of hotel is a commercial purpose. It is not necessary that petitioner himself should run it. It can be let out to any one and also can be run by partnership. To safeguard the interest of the tenant and to obviate from any intentional mischief of the landlord, which he may commit after release by using the land for any purpose other than the purpose for which he sought the release, the Legislature in its wisdom required the landlord to submit an approved plan also. Condition can be imposed that release of surplus land shall not be used for any purpose other than for which the release order has been obtained. So far as the financial status of ta landlord is concerned, it is true that if the landlord intends to raise construction it is not necessary that he must be possessing the money with him. It is well known and judicial notice can be taken of the fact that there are so many financial institutions advancing loan to encourage the construction of new residential buildings as well as buildings for commercial purposes. The petitioner had also submitted before the court that he had some money while the remaining he could arrange by obtaining the loan. Therefore it is clear that the judgment of the learned Appellate Court on this point is based totally on irrelevant considerations. The petitioner had also submitted before the court that he had some money while the remaining he could arrange by obtaining the loan. Therefore it is clear that the judgment of the learned Appellate Court on this point is based totally on irrelevant considerations. Now the question is as to what is the surplus land as explained in Explanation to Section 21 (2) of the Act so as to attract the provisions for release of surplus land under the said section. The land appurtenant will be surplus land if it is double the area of land covered by constructions in the tenancy. This can be done by the simple calculation viz. Finding out the plinth area on which the building is constructed and to calculate the open space including the passage. If this open area comes to be more than double of the plinth area of the building, then the land will be deemed to be surplus land. The appellate Court does not seem to have thoroughly examined the matter in this light. The petitioner had filed the report of the Architect but there is no reference of the report of the Architect in the judgment of the Appellate court. The appellate Court has, therefore, to examine the matter and to make calculation in the light of the explanation to find out whether the open land comes within the definition of surplus land as given in the Explanation or not and then to decide the application. Since this is a factual matter to be examined by the First Appellate Court, there is no option but to send he case to the Appellate Authority. The Appellate Court while doing so, besides examining the report of the Architect and sanctioned plan submitted by the petitioner may also get the land measured through the Commissioner for arriving at a correct conclusion. The writ petition succeeds and is allowed. While setting aside the judgment and order dated 7.12.1984 the matter is sent back to the Appellate Authority with the direction to decide the appeal afresh in accordance with law after taking into consideration the observations made in the body of this judgment. Since the matter is an old, the Appellate Authority is directed to dispose of the appeal as expeditiously as possible, preferable within three months from the date of production of a certified copy of this judgment before him." 5. Since the matter is an old, the Appellate Authority is directed to dispose of the appeal as expeditiously as possible, preferable within three months from the date of production of a certified copy of this judgment before him." 5. Consequently the Appellate Court heard appeal afresh, issued a Survey Commission and thereafter remand the case on an issue to the Prescribed Authority i.e. to consider available evidence and decide on the question of comparative hardship. Pursuant thereto Prescribed Authority considered the issue of comparative hardship with respect to landlord's prayer for release vis a vis garage, servant quarter and verandah and recorded its findings that neither his (landlord) need appears to be genuine for the said accommodation nor comparative hardship lies in his favour. The Prescribed Authority observed that the tenant's servant is residing in the servant's quarter and in the garage he keep she-buffaloes. The release thereof would cause serious prejudice to the tenant for effective enjoyment of tenanted residential accommodation by him. 6. In recording above findings, Prescribed Authority has said that one Om Prakash Sharma is residing as servant of the tenant and he (tenant) is keeping two she buffaloes in the garage. In view thereof the Prescribed Authority said that tenant being a retired Deputy Superintendent of Police, entitle to retain the above accommodation commensurating to his status as retired Deputy Superintendent of Police. 7. With the above findings, on the question of need and comparative hardship in respect to garage, servant quarters and verandah, Prescribed Authority sent the matter back to the Appellate Court by its order dated 2nd September, 2003. Consequently, the Appellate Court vide impugned judgment dated 9th October, 2003 has allowed landlord's application for release of surplus land of 10,356 sq.ft. Only but has rejected the same with regard to release of motor garage, servant quarter and verandah and to this extent confirmed Prescribed Authority's orders dated 20.2.1984. 8. The first writ petition has been filed by landlord to the extent he is aggrieved by non release of accommodation namely garage, servant quarter and verandah while second petition has been filed by the tenant challenging appellate order in so far as it has allowed landlord's application releasing open but appurtenant land measuring 10356 sq.ft. 9. 8. The first writ petition has been filed by landlord to the extent he is aggrieved by non release of accommodation namely garage, servant quarter and verandah while second petition has been filed by the tenant challenging appellate order in so far as it has allowed landlord's application releasing open but appurtenant land measuring 10356 sq.ft. 9. During pendency of this matter, the tenant Sardar Bulaka Singh expired on 21st July, 2004 and has been substituted by his legal heir/representative i.e. son Sri Paramjeet Singh. 10. Sri S.K.Om, learned counsel appearing for the petitioner-tenant in second petition has admitted that son of original tenant is unemployed but own certain agricultural land and is maintaining himself from the income of agricultural land. He however has assailed the appellate order releasing surplus land of 10,356 sq.ft. contending that the Court below had failed to consider that Pilibhit has Development Authority and therefore, map allegedly sanctioned by Municipal Board in 1984 would be of no consequence entitling the landlord to raise construction of its alleged hotel on the said land and unless the map is sanctioned by Development authority. Hence the application could not have been allowed releasing surplus land under Section 21(2) of the Act, 1972. He further contended that even by considering the total area of land and constructed part, the area of surplus land released by Appellate Court is patently illegal. 11. Defending on this aspect, Sri Subodh Kumar, Advocate contended that total constructed area was 9,634 sq.ft. and the land beyond the double of constructed area would construe "surplus land". In the present case, it is admitted that plinth of the constructed area measured about 9,634 sq.ft. Therefore, double of the constructed area would come to 19,268 sq.ft. The remaining area would be 17,891 sq.ft. Hence instead of entire surplus land, landlord sought release of only 10,356 sq.ft., which has rightly been allowed by the appellate Court. 12. Coming to the first petition. Sri Subodh Kumar, learned counsel appearing for the landlord-petitioner contended that tenant had not been occupying either motor garage, servant quarter or verandah and therefore, both the Courts below have committed illegality in rejecting petitioner's application for release of aforesaid part of the building on mere presumption that tenant is using the same. No evidence or material was placed by tenant in this regard and findings recorded by Courts below are perverse and contrary to record. No evidence or material was placed by tenant in this regard and findings recorded by Courts below are perverse and contrary to record. 13. I have considered the rival submissions of the parties and perused the record. 14. It appears that in support of his case the landlord-petitioner (first petition) has filed four affidavits of Ram Mohan, Mahesh Sharma, Rajeev Mohan and Kailash Chandra, which are paper no.19C, 20C, 21C and 22C. All these persons have stated that neither the tenant has any servant nor is keeping any she-buffalo in the aforesaid part of the premises. It is the admitted case of both the parties that the tenant did not own any motorcar so as to keep the same in the garage. To contradict the claim of landlord, on behalf of the tenant, besides his own affidavit, three affidavits have been filed namely that of Durga Prasad, Om Prakash Sharma and Smt. Leelawati i.e. paper nos.26C, 27C and 28C. It has been admitted by the tenant that he is not using motor garage for the purpose of parking a motorcar or any other auto mobile. On the contrary his claim is that the same is being used for keeping cattle(s). He further said that there is a servant who is residing in servant quarter. This was so stated in the affidavit of Sri Bulaka Singh (tenant), as is evident from para 10 of Appellate Court's judgment dated 9th October, 2003. The affidavit of Durga Prasad paper no.26-C states that garage is being uses for keeping she-buffaloes and one room is being used for storing chaff (bhusa) and another is being used by two servants of the tenant. The affidavit of Om Prakash says that he is residing in one of the room for the last 12 years and in another Kothari, she- buffaloes and food items are being kept. Smt. Leelawati has said in her affidavit that Om Prakash Sharma is the servant of Sardar Bulaka Singh. The servant is residing in one of the rooms and another being used for storing chaff (Bhusa). These affidavits are not on record but the contents of the affidavit, as reproduced have been noticed by the Court below. They show that the persons who have given their affidavits in favour of tenant had not said the things in unanimity. The servant is residing in one of the rooms and another being used for storing chaff (Bhusa). These affidavits are not on record but the contents of the affidavit, as reproduced have been noticed by the Court below. They show that the persons who have given their affidavits in favour of tenant had not said the things in unanimity. Om Prakash admitted to be residing in one of the room for the last 12 years but has not mentioned that he is a servant of the tenant. His status as servant has been mentioned in the affidavit of Smt. Leelawati. One of the affidavit in support of the tenant claims that there are two servants of tenant but affidavit of Smt. Leelawati refers to only one servant i.e. Om Prakash Sharma. In para 17 of written statement filed by the tenant, it is said that he has servants i.e. more than one and garage is being used for tethering she-buffalo. The contradiction in affidavits has not been attempted to be explained by the tenant. 15. The garage is meant for parking a vehicle. Once it is admitted that the same is not being used by tenant for the said purpose, to claim that release of garage would cause adversely upon the status of tenant and his enjoyment of tenanted residential accommodation his wholly perverse. Similarly no reason has been assigned as to why Verandah ought not be released to the landlord and in what manner it is being used by tenant. In fact on the question, in what manner Verandah is used, both the Courts are totally silent and even tenant has not said anything in his written statement that he is using verandah for any purpose whatsoever. Therefore verandah is not being used by tenant and this fact and statement of landlord remains uncontroverted. There was no reason to the Courts below not to allow request for release of the said part of the accommodation to the landlord. 16. The Court on noticing discrepancies in the affidavits filed in support of the claim of the tenant required learned counsel for petitioner-tenant (second writ petition) to explain the above discrepancy and to show whether he has explained anywhere this discrepancy in the writ petition but he could not lay his hand thereupon. 17. 16. The Court on noticing discrepancies in the affidavits filed in support of the claim of the tenant required learned counsel for petitioner-tenant (second writ petition) to explain the above discrepancy and to show whether he has explained anywhere this discrepancy in the writ petition but he could not lay his hand thereupon. 17. In my view, when the Courts below found claim of petitioner-landlord about his proposed construction of hotel at the premises in question genuine, correct and bona fide and the sanctioned map by Municipal Board, Pilibhit was also found reliable, there was no justification not to release the accommodation covered by sanctioned map for the purpose of construction of hotel unless a strong case in favour of tenant is found, otherwise the very purpose of releasing surplus land may not achieve its objective. The need of landlord stands proved genuine when the surplus land has been released in his favour. In that case the other part of accommodation in question, which also forms part of the sanctioned map for the purpose of construction of hotel, reasonably is covered by genuine need of landlord and findings recorded by Courts below otherwise therefore, in my view, are based on conjuncture, surmises and irrelevant factors. Without appreciating pleadings and evidence on record carefully, the impugned judgment of Courts below have resulted in manifest injustice and perverse findings. 18. Now coming to the question of release of surplus land, which has been challenged in the second petition, I find that in view of observations of this Court in judgment dated 20th March, 2003, it cannot be disputed that double of constructed land came to 19,268 sq.ft. The surplus land, for which landlord could have sought release constituted more than 17000 sq. ft. out of which the petitioner landlord (first petition) has sought release of only 10356 sq. ft. The same therefore, has rightly been determined, calculated and allowed by the lower Appellate Court. 19. In view of the above, orders in so far as the Courts below have rejected landlords application for release of motor garage, servant quarter and verandah is hereby set aside. The landlords application for release of the aforesaid accommodation is hereby allowed. The appellate order insofar as it has released surplus land of 10,356 sq.ft. in favour of the petitioner landlord (first petition) is hereby confirmed. 20. The landlords application for release of the aforesaid accommodation is hereby allowed. The appellate order insofar as it has released surplus land of 10,356 sq.ft. in favour of the petitioner landlord (first petition) is hereby confirmed. 20. In the result, Writ Petition No. 4818 of 2004 is hereby allowed in the above manner. The Writ Petition No.54009 of 2003 is dismissed. 21. There shall be no order as to costs. _____________