Hon’ble Anil Kumar, J.—Heard Sri R.K. Sharma, learned counsel for the petitioner and Sri Virendra Singh, learned counsel for the respondent Nos. 1 and 2.

2. The controversy involved in the present case is in respect to release of two door shop situated in the house No. 133/189, Purna Ganesh Ganj, Aminabad Road, P.S. Naka Hindola, Lucknow under the tenancy of the petitioners and respondent Nos. 3 and 4. On 29.7.2004. release application has been moved (Registered as PA. Case No. 549 of 2004) under Section 21(1)(a) of U.P. Act 13 of 1972, written statement filed on 16.8.2007.

3. During the pendency of the matter before Prescribed Authority as submitted by learned counsel for the petitioner, an application for issue of commission moved not considered by the trial Court on one hand and on the other hand by means of a judgment and order dated 15.7.2008 (Annexdure No. 4) release application was allowed. Aggrieved by the same, an appeal under Section 22 of U.P. Act 13 of 1972 (Rent Appeal No. 29 of 2008) filed.

4. In the said appeal, an application under Section 34(1)(c) read with Rule 22(f) of the U.P. Act, 1972 filed with a prayer to appoint an Advocate/Commissioner for a local inspection of Building No. 133/189, Old Ganesh Ganj, Aminabad, Lucknow and building No. 566/19, Jai Prakash Nagar, Alambagh, P.S. Alambagh, Lucknow at the cost of tenant/petitioner.

5. On 5.11.2008, landlord/respondents filed objection, after considering the point in respect to issue of local commission on merit, appellate Court/Additional District Judge, Court No. 2, Lucknow vide order dated 16 February, 2009 rejected the same with the following observations :

“Further, the appellants have still opportunity to raise the plea at the time of argument. I am of the opinion that there is no need of appointing an Advocate-Commissioner for local inspection of Building No. 133/189, Old Ganesh Ganj, Aminabad, Lucknow and building No. 566/19, jai Prakash Nagar, Alambagh, Alambagh, Lucknow.”

6. Hence the present writ petition has been filed.

7. Sri R.K. Sharma, learned counsel for the petitioner while challenging impugned order submits that in the present case application for issue of commission moved by the petitioners/tenants before the prescribed authority was not considered and decided on merit but vide order dated 15.7.2008 allowed release application under Section 21(1)(a) of the Act.

8. Again when the matter is pending before the appellate Court an application moved by the petitioner/tenant under Section 34(1)(C) read with Rule 22 (f) of U.P. Act 1972 for issue of Advocate/Commissioner in order to submit a report whether two buildings for which the commission is sought is available with the landlord, or not, the said fact has a material bearing on the controversy involved in the present case. However, within any reasonable justification or reasons, rejected byappellate authority by means of the impugned order, as such action on the part of O.P. No. 1 thereby rejecting the application in question is illegal and arbitrary rather contrary to law liable to be set aside.

9. I have heard the counsel for the parties and gone through the record.

10. So far as factual matrix of the present case is concerned, the same are not disputed by the parties, in the light of the said fact. Core question which is to be decided in the present case is whether a party can claim appointment of Commission/Advocate Commissioner as matter of right, it is the discretion of the authority under the rent control Act to issue the same in order to decide the controversy, For the said purpose, it is necessary to have a glance on provisions as provided under Section 34(1)(C) and Rule 22 (f) of Rules under U.P. Act 13 of 1972. , which are reproduced hereinbelow :

“Section 34-Powers of various authorities and procedure to be followed by them : (1) The District Magistrate, the prescribed authority or any [appellate or revising authority] shall for the purposes of holding any inquiry of hearing, [any a