JUDGMENT Anjani Kumar, J.
1. This writ petition under Article 226 of the Constitution of India is filed by the petitioner-tenant. Brief facts are that the petitioner who is tenant of the shop in question for the past 25 years, as asserted in the writ petition, contested an application filed by the landlord under Section 21 (1) (a) of U.P. Act No. 13 of 1972 (in short the Act), whereby the landlord sought the release of the aforesaid accommodation in favour of the landlord on the ground that two sons of the landlord, Sandeep Kumar and Sachin aged 22 years and 20 years respectively, are unemployed, therefore, he requires the shop in dispute for starting new business by these two sons. It is also stated by the landlord that the petitioner-tenant is in possession of self owned house in Ghatampur where he can easily shift his business. It is further asserted that the building in question consists of three shops, out of which one has been release in favour of the landlord put the tenant has obtained an interim order from the High Court and thus the landlord has not been able to get possession of the shop released in his favour. This application was contested by the petitioner-tenant denying the fact that the shop in question is bona fide required by the landlord for establishing his song Sandeep Kumar and Sachin. It is stated by the tenant that Sandeep Kumar is doing business of Sarafa at Shivpuri, Ghatampur which is a developed market area whereas Sachin is running a medical store with his brother Surendra Kumar. It is also stated by the petitioner-tenant that the petitioner made sincere efforts to find a suitable shop but could get a suitable shop. An objection was also raised by the petitioner-tenant that the other co-owner, Smt. Pratibha, has since not joined the application under Section 21 (1) (a) of the Act the application is liable to be dismissed. The prescribed authority by his order dated 22nd January 2003 rejected the application filed by the landlord for the release of the accommodation in question. Aggrieved thereby the landlord preferred an appeal under Section 22 of the Act. The appellate authority by the impugned order allowed the appeal filed by the landlord and directed the shop in dispute is released in favour of the landlord. Thus this writ petition by the petitioner-tenant challenging the order of the appellate authority.
2. Learned counsel for the petitioner has argued that the findings arrived at by the appellate authority, whereby the appellate authority has reversed the order passed by the prescribed authority, suffers from manifest error of law and in fact the landlord does not require the shop in question bona fide. It is also asserted by the tenant-petitioner that one shop has already been released by the landlord in which the landlord, if at all require to settle his sons, can establish business for his sons. The appellate authority has observed as under:-
The appellants (landlords) appear to be right that when the tenant was originally let the shop for more than 25 years ago the children of the petitioner-applicants were either not born or were minor. Although two of the children are engaged somehow in the business but not in better placed position. Even the business of bullion from a house is not convenient. The need of the petitioners appeared to be bona fide because they have already got released one of the shops. But the possession could not be handed over to the landlord, as the matter is pending in the High Court and there is a stay in favour of the tenant. If two of the sons of the petitioners are given the shop, they can open a shop of provisions very conveniently and run a business. Moreover, after all the appellant is the landlord. He must have his own requirements for business, settlement of children and other requirements. A tenant cannot dictate him that he can earn the livelihood from farming and agriculture. It is non of the business of the tenant to say so. If the appellant has agricultural land, it is for his added benefit. Agricultural farming can be no substitute of a business. Therefore, the shop which is under the tenancy of the respondent-tenant is more genuinely required for the benefit of the appellant. Moreover if the respondent is running his shop in the disputed shop for more than 25 years and a litigation is pending, he should have found and tried to search for another shop in the market to run his business. Landlord must have a priority in the settlement of his family, his sons, his requirements, his need and in this respect the Hon'ble. High Court in 2002 (2) ARC page 162 observed that need of the landlord is bona fide and tenant has not made any effort to find out an alternative shop during all these period."
3. Thus relying upon the aforesaid decision of this Court and also the decision of this Court reported in 2002 (2) ARC 539, Khubi Ram (Smt.) and Ors. v. IVth Additional District Judge, Jhansi the appellate authority recorded a finding that need of the landlord is bona fide and also found that the tilt of comparative hardship is also in favour of the landlord. Thus the order of the prescribed authority was set aside. The appeal was allowed. The shop in question was released in favour of the landlord.
4. Learned counsel appearing for the contesting respondent has relied upon a decision of this Court reported in 1984 (1) ARC 113, N.S. Datta and Ors. v. The VIIth Addl. District Judge, Allahabad and Ors. and 2004 (1) ARC 148, Sanjay Kumar and Ors. v. Subodh Kumar and Ors. for the proposition that each and every adult member of the family has a right of independent business. Learned counsel for the contesting respondent-landlord further relied upon the decisions 2000 (1) ARC 185, Pramod Kumar Verma v. VIth Additional District Judge, Bijnor and Ors., 2000 (1) ARC 513, Bansal Brothers v. XIIIth Additional District Judge, Kanpur Nagar and Ors., and 2002 (2) ARC 539, Khubi Ram (Smt.) and Ors. v. IVth Additional District Judge, Jhansi for the proposition that if the tenant has made no attempt to find alternative accommodation his case of hardship cannot be considered. Learned counsel for the respondent further relied upon paragraphs 46 and 47 of the decision reported in 2002 (2) ARC 539, Khubi Ram (Smt.) and Ors. v. IVth Additional district Judge, Jhansi, for the proposition that once the need of the landlord is found to be bona fide the release application cannot be rejected on the grounds of hardship, which run as under:
"46. In India Pipe Fitting Co. v. Fakruddin M.A. Baker and Anr., AIR 1978 Supreme Court 45 : 1978 ARC 224 (SC), the Apex Court held that the conclusions of facts cannot be interfered with by the High Court under Article 227 of the Constitution of India. The findings on the question of bona fide requirement of the landlord recorded by the courts below by appreciating the entire evidence cannot be interfered with by the High Court under Article 227 of the Constitution of India.
47. Taking up the second submission made by the learned Counsel for the landlord respondent No. 2 that the finding recorded by the learned Appellate Authority (Respondent No. 1) on the question of comparative hardships on a consideration of the entire material on record and the relevant facts and circumstances, cannot be interfered with in exercise of extra-ordinary writ jurisdiction under Article 226 of the Constitution of India. I am of the opinion that the said submission of the learned Counsel for landlord respondent No. 2 is correct. The learned appellate Authority (Respondent No. 1) considered the entire material on record and recorded finding on the question or comparative hardship taking into account various relevant facts and circumstances established by the evidence on record. The said finding recorded by the learned Appellate Authority (Respondent No. 1) on the question of comparative hardships is finding of fact. There is neither any illegality nor perversity in the said finding. As such, no interference is called for in the exercise of writ jurisdiction under Article 226 of the Constitution of India, with the said finding of fact recorded by the learned Appellate Authority (Respondent No. 1.) on the question of comparative hardship."
5. Learned counsel for the petitioner then argued that the appellate authority has not considered the guidelines prescribed under Rule 16 (2) therefore, the order of the appellate authority deserves to be quashed. Learned counsel for the contesting respondent relied upon a decision of this Court reported in 1996 (1) ARC 559, Shiv Dev Raj v. Additional District Judge and Ors. wherein this Court has held that Rule 16 (2) is merely a guiding factor. The Court can take other considerations also. In this view of the matter the argument advanced on behalf of the petitioner deserves to be dismissed.
6. There is yet another reason that in view of the decision of the Apex Court reported in 2004 (2) AWC 1721 (SC), Ranjeet Singh v. Ravi Prakash, wherein the Apex Court has ruled that this Court in exercise of powers under Article 226 of the Constitution of India cannot sit in appeal over the findings arrived at by the subordinate authorities by reappraising the evidence. In the aforesaid decision the Apex Court relied upon its own decision Surya Dev Rai v. Ram Chander Rai and Ors. (2003) 6 SCC 675. paragraph 38 whereof is quoted below:
"38. Such like matters frequently arise before the High Courts. We sum up our conclusion in a nut shell, even at the risk of repetition and state the same as hereunder:
i. Amendment by Act 46 of 1999 with effect from 1.7.2002 in Section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
ii. Interlocutory orders, passed by the Courts subordinate to the High Court, against which remedy of revision has been excluded by C.P.C. Amendment Act 46 of 1999 are nevertheless open to challenge in and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
iii. Certiorari, under Article 226 of the Constitution is issued for correcting gross errors of jurisdiction on i.e. when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction by over stepping or crossing the limits of jurisdiction or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
iv. Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within bounce of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step into, exercise its supervisory jurisdiction.
v. Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.
vi. A patent error is an error which is self evident i.e. which can be perceived or demonstrated without involving into any lengthy or completed argument or a long-drawn process of reporting. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.
vii. The power to issue a wit of certiorari and supervisory jurisdiction are to be exercise sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act test a gross failure of justice or grave injustice should occasioned. Care, caution and circumspection need to be exercised, when any of the above said two jurisdictions is sought to be invoked during the-pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred thereagainst and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as. If not corrected at that very moment may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
viii. The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
ix. In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English Courts has almost obliterated the distinction between the two jurisdiction. While exercising jurisdiction to issue a writ of certiorari, the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case."
7. In view of the law laid down by the Apex Court I do not find any ground for interference with the order of the appellate authority in exercise of jurisdiction under Article 226 of the Constitution of India. This writ petition, therefore, has no force and is accordingly dismissed.