JUDGMENT Anjani Kumar, J.
1. By means of the present writ petition under Article 226 of the Constitution of India, petitioner has challenged the order dated 9.2.1995 passed by appellate authority in Rent Appeal No. 58 of 1988. whereby the appellate authority has dismissed the appeal filed by the petitioner and affirmed the order dated 17.10.1988 passed by Prescribed Authority.
2. The facts leading to the filing of present wril pelition are that petitioner Shital Prasad. who is admittedly a tenant of the accommodation in dispute, which is a non-residential accommodation, is carrying on business of Hotel, The landlord-respondent No. 3 filed an application under Section 21 (1) (a) of the U, P. Act No. 13 of 1972. (hereinafter referred to as the 'Act'), for release of the accommodation in his favour to set up his son in the hotel business as the accommodation in dispute is most suitable for running the hotel business. The petitioner-tenant repelled the allegations made by the landlord and contended before the Prescribed Authority that the need set up by the landlord is neither bona fide, nor pressing. However, it has not been disputed that the son of the landlord requires of an establishment in a business. The Prescribed Authority after considering the pleadings and evidence on record has arrived at the conclusion that the need of the landlord is bona fide and that the till of the comparative hardship is also in favour of the landlord. The Prescribed Authority also found that in the adjoining building of Brijnandan Saran, petitioner Shital Prasad is running his hotel business along with his brother. The Prescribed Authority thus allowed the application filed by the landlord.
3. Aggrieved thereby. the petitioner preferred an appeal before the appellate authority under Section 22 of the Act. The appellate authority, after going through the records and after hearing the arguments of both sides, has affirmed the findings recorded by the Prescribed Authority with regard to the bona fide requirement as well as the comparative hardship and thereafter dismissed the appeal by the order impugned in the present writ petition dated 9.2.1995 and thus, this writ petition has been filed by the petitioner-tenant challenging the aforesaid order. The first argument advanced by Sri Saurabh Jain, learned counsel appearing on behalf of the petitioner is that a perusal of Section 21 (1) (a) of the Act will demonstrate that it is incumbent on the part of the Prescribed Authority as well as appellate authority as to whether the release of the part of the accommodation of the tenancy would suffice the requirement of the landlord as set up in the application under Section 21 (1) fa) of the Act. Sri B. Dayal, learned counsel appearing for the contesting respondent contended that this argument was not advanced either before the Prescribed Authority, or before the appellate authority. Sri Dayal in support of his contention relied upon a decision of the Apex Court in Smf. Raj Rani Mehrotra v. IInd Additional District Judge and Ors., 1980 ARC 311, wherein the Apex Court has held that "the issue arising under Rule 16 (1) (d) of the rules framed under the U. P. Urban Buildings (Regulation of Letting. Rent and Eviction) Rules, 1972, as to whether the landlord's need could have been satisfied by releasing only a part of the premises has not been gone into or considered by any of them. When the plea under the said rule was pressed on behalf of the tenant in the High Court. The High Court rejected it on the sole ground that no such plea has been raised by the tenant in his written statement and as such, it could not be considered. It is clear that under the relevant rule, it is a duty of the Court to take into account that aspect while considering the requirements of personal occupation of the landlord and. therefore, this issue will have to be remanded to the High Court." The other decisions relied upon by Sri Dayal are Firm ShanJcar Das Durga Prasad v. IVth Additional District Judge, Meerut and Ors., 1981 ARC 229 : Siya Ram v. Manik Chandra and Ors., 1981 ARC 232 : Jivram Ranchhoddas Thakkar and Anr. v. Tulshiram Ratanchand Manlri and Ors.. In the decision of Smt. Raj Rani Mehrotra of the Apex Court arising out of an application under Rule 16 (1) (d) of the Rules as would be clear from the judgment. whereas the present application is governed by the provisions of Rule 16 (2) of the Rules. Rule 16 (1) and (2) is reproduced below :
"16 (1). In considering the requirements of personal occupation for purposes of residence by the landlord or any member of his family, the prescribed authority shall, also have regard to such factors as the following :
(a) where the landlord already has adequate and reasonably suitable accommodation having regard to the number of members of his family and their respective ages and his means and social status, his claim for additional requirements shall be construed strictly ;
(b) where a residential building was let out at a time when the sons of the landlord were minors and subsequently one or more of them has married, the additional requirement of accommodation for the landlord's sons shall be given due consideration ;
(c) where the tenant has, apart from the building under tenancy other adequate accommodation, whether owned by him or held as tenant of any public premises, having regard to the number of members of his family and their respective ages and his social status, the landlord's claim for additional requirements shall be construed liberally ;
(d) where the tenant's needs would be adequately met by leaving with him a part of the building under tenancy and the landlord's needs would be served by releasing the other part, the prescribed authority shall release only the latter part of the building ;
(e) where there are a number of tenants separately occupying a bloc of tenements and the landlord desires their eviction on ground of his personal need the prescribed authority shall, consider whether suitable alternative accommodation is likely to be available to such tenants :
(f) where the landlord offers to the tenant alternative accommodation reasonably suitable to the needs of the tenant and his family the landlord's claim for release of the building under tenancy shall be construed liberally ;
(g) where the landlord was engaged in any employment in the same city, municipality, notified area or town area in which the building is situate and was in occupation of other accommodation by reason of such employment or where the landlord is the wife or minor son or unmarried daughter of a person who was engaged in any profession, trade, calling or employment away from the city, municipality, notified area or town area within which the building is situate and was living with such persons, and by reason of the cessation of such engagement, the landlord needs the building for occupation by himself for residential purposes, such need shall ordinarily be deemed sufficient."
"16 (2). While considering an application for release under Clause la) of Sub-section (1] of Section 21 in respect of a building let out for purposes of any business, the prescribed authority shall also have regard to such facts as the following :
(a) the greater the period since when the tenant opposite party, or the original tenant whose heir the opposite party is, has been carrying on his business in that building, the less the justification for allowing the application ;
(b) where the tenant has available with him suitable accommodation to which he can shift his business without substantial loss, there shall be greater justification for allowing the application ;
(c) the greater the existing business of the landlords own, apart from the business proposed to be set up in the leased premises, the less the justification for allowing the application, and even if an application is allowed in such a case, the prescribed authority may on the application of the tenant impose the condition where the landlord has available with him other accommodation (whether subject to the Act or not) which is not suitable for his own proposed business but may serve the purpose of the tenant, that the landlord shall let out that accommodation to the tenant on a fair rent to be fixed by the prescribed authority ;
(d) where a son or unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant of the landlord has. after the building was originally let out. completed his or her technical education and is not employed in Government service, and wants to engage in self-employment, his or her need shall be given due consideration."
4. In view of the aforesaid fact, it is clear that there is a distinction made by the Legislature in framing the two sets of Rules, one residential premises governed by Rule 16 (1) and the other Rule is 16 (2). which is made applicable only to the non-residential premises. The present application is for the release of the non-residential accommodation ; therefore, it is Rule 16 (2), which will be made applicable, A perusal of Rule 16 (2). will demonstrate that there is nothing like Sub-rule (2) as is thereunder Sub-rule (1) of Rule 16. In this view of the matter, this argument is not available to the learned counsel for the petitioner and this Court refuses to entertain this argument on the ground that since this argument has not been raised either before the Prescribed Authority, or before the appellate authority the same cannot be raised.
5. There is yet another reason to repel the aforesaid argument. For this purposes. Section 21 of the Act is reproduced below :
"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 :
(b) that the building is in a dilapidated condition and is required for purposes of demolition and new construction."
6. A perusal of Section 21 (1) of the Act clearly demonstrates that it is the satisfaction of the authority whether release of part of the accommodation will suffice the requirement or not. The authority in its order has clearly stated that the entire premises are released, in the absence of any argument on behalf of the tenant to demonstrate that the part of the accommodation would suffice for the need set up by the landlord, it is presumed that the Prescribed Authority is satisfied that the need of the landlord would be met only by releasing the entire premises.
7. Sri Jain further submitted referring to the sketch plan by means of filing a supplementary-affidavit that the view taken by the Prescribed Authority and the appellate authority even with regard to the bona fide need and comparative hardship is upheld, this Court can always direct the parties to adopt the principles of live and let live and the building in dispute can be directed to divert into two portions so that the landlord and the tenant both may survive in the business. I am afraid that in the facts and circumstances of the case and particularly in view of the denial of the aforesaid offer by the landlord, this Court cannot issue any direction under Article 226 of the Constitution of India, particularly when a writ of certiorari is prayed for quashing of the orders impugned in the present writ petition. There is yet another reason as suggested by the landlord that the authorities below have recorded a finding that the adjoining building is under the co-tenancy of the petitioner-tenant along with his younger brother and they are carrying on the same business, i.e.. hotel business. In this view of the matter, this Court is not inclined to issue any direction as prayed for by learned counsel appearing on behalf of the petitioner.
8. Sri Jain half-heartedly tried to assail the findings recorded by the Prescribed Authority and affirmed by the appellate authority. The findings of fact recorded by the Prescribed Authority having been affirmed by the appellate authority, nothing has been brought to the notice of this Court that the findings are either perverse, or suffer from any error of law. This Court will not sit in appeal over the findings recorded by the Prescribed Authority and affirmed by the appellate authority. In this view of the matter, the findings recorded by the Prescribed Authority and affirmed by the appellate authority are hereby affirmed and this Court refuses to exercise its jurisdiction under Article 226 of the Constitution of India.
9. In view of what has been stated above, this writ petition deserves to be dismissed and is hereby dismissed. The interim order, if any, stands vacated. However, the parties shall bear their own costs.