Judgment S.D. Agarwala, J. 1. THIS is a petition under Article 226 of the Constitution of India arising out of proceedings for release under section 21 (1) (a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act). 2. THE petitioner is a tenant. Smt. Zaibunnissa, respondent no. 1, is the landlady of the said premises. THE property in dispute bears municipal no. 6/630, situate in Saharanpur. Initially, the application was filed by Haji Salam under section 21 (1) (a) of the Act on the ground of need for residence as well as for business purposes. During the pendency of the application, Abdul Salam died on 10th December, 1979. Smt. Zaibunnissa, the widow, thereafter, got the application for release amended and sought release on the ground that she requires the accommodation for the residence of herself and four children. She also wants to start a business in a portion of the property, which are the shops, in order to maintain herself and the children. This application was contested by the petitioner and it was denied that the respondent had a bona fide need for the premises in question. The Prescribed Authority by his order dated 29th July, 1980, allowed the release application holding that the need of the landlady was bona fide and genuine and that greater hardship will be caused to her in case the release application is rejected. Against the said decision, an appeal was filed under section 22 of the Act in the court of the District Judge, Saharanpur. The District Judge, Saharanpur, by his judgment dated 10th November, 1980, dismissed the appeal. The petitioner has now challenged the orders of the Prescribed Authority aswell as that of the appellate court by means of the present petition. 3. I have heard the learned counsel for the parties. 4. THE petitioner has raised two contentions before me. THE first contention of the petitioner is that in accordance with Rule 16 (1) (d) of the Rules framed under the Act, it was mandatory for the courts below to have considered whether part of the building under the tenancy of the petitioner would serve the need of the respondent no. 1 or not. Since this has not been considered, therefore, the finding in regard to bona fide need is vitiated in law. 1 or not. Since this has not been considered, therefore, the finding in regard to bona fide need is vitiated in law. This submission relates to the portion, of the building, which is in occupation of the petitioner for residential purposes. THE second submission of the petitioner is that in accordance with Rule 16 (2) (b) of the Rules, it was mandatory for the courts below to have found that the petitioner can shift his business without substantial loss in the alternative accommodation available with him and in the absence of this finding, the finding with regard to comparative hardship is vitiated in law. In regard to the first submission, at the outset, it may be stated that the petitioner did not challenge the finding in regard to the bona fide need of the respondent no. 1 on merits. It has been only challenged on the ground mentioned in Rule 16 (1) (d) of the Act. It is admitted on the record of the case that the petitioner did not urge this question before the courts below. The petitioner, however, has relied upon a decision of Hon'ble Supreme Court in Smt. Raj Rani Mehrotra v. The 2nd Additional District Judge, 1980 ARC 311. The Supreme Court, in that case, has opined, after taking into consideration Rule 16 (1) (d), as under : "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." 5. IN the instant case, the principle laid down would apply, as on examining the judgments of the Prescribed Authority as well as that of the appellate court, it is clear that the applicability of Rule 16 (1) (d) of the Rules was not considered by the said Courts. IN view of the above, the learned counsel for the petitioner submitted that the matter be remanded to the lower appellate court. Learned counsel for the widow Smt. Zaibunnissa however, urged that there are already facts on the record which could enable the court to determine this question and great injustice would be caused to the widow in case the matter is remanded again to the appellate court. Learned counsel for the widow Smt. Zaibunnissa however, urged that there are already facts on the record which could enable the court to determine this question and great injustice would be caused to the widow in case the matter is remanded again to the appellate court. The submission made by the learned counsel for the widow, in my opinion, is well founded and, in my opinion, there is sufficient evidence on the record to examine this plea and, as such, I do not think it necessary, to remand this case on this question. IN the case of Raj Rani Mehrotra (Supra) also, the Supreme Court has directed as under:- "We, accordingly, set aside the order of the High Court dismissing the writ petition and remand the matter back to it for determination of the aforesaid issue. If necessary, the parties may be allowed to lead fresh evidence, if the High Court is unable to decide it on the materials on the record. If evidence becomes necessary, the High Court may, in its turn, remand the matter to the trial court, which will give an opportunity to both the parties to lead fresh evidence." 6. AS I have already observed above, in my opinion, no fresh evidence is required for determining this question and there is sufficient evidence on the record on the basis of which this question can be determined. For the determination of this question, the extent of the accommodation and the number of the family members of both the landlord and the tenant are required. All this evidence is already on the record. I am, therefore, determining this question in this petition, as in the case of Smt. Raj Rani Mehrotra (Supra) also, the Supreme Court directed the High Court to determine this question and remand only if fresh evidence was required. The extent of the property has been given in the plan, which is attached to the application under section 21 (1) (a) of the Act, which has been annexed as Annexure 'I' to the counter affidavit of Smt. Zaibunnissa in this Court. The extent of the accommodation is not disputed. The living residential accommodation consists of three rooms of the size 9' x 10', 11'6" x 11' and 14'6" x 9'. There is a common court-yard and a common passage, only one latrine, one bath room and one kitchen as well as a verandah. The extent of the accommodation is not disputed. The living residential accommodation consists of three rooms of the size 9' x 10', 11'6" x 11' and 14'6" x 9'. There is a common court-yard and a common passage, only one latrine, one bath room and one kitchen as well as a verandah. According to the case set up by the petitioner, his family consists of himself, his wife and ten children, as stated in para 17 of his written statement, which is attached as Annexure 2' to the counter affidavit. Smt. Zaibunnissa, the widow, in accordance with para 19 (a) of her application under section 21 (1) (a) of the Act, had four sons. In 1979, when the application was filed, the ages of the sons were 11, 9, 7 and 3 years. The position, therefore, is that the widow requires the accommodation for herself and her four sons and the family of the tenant consists of himself, his wife and ten children. Rule 16 (1) (d) of the Rules provides that where the tenant's need would be adequately met by leaving with him a part of the building and the landlord's need could be served by releasing the other part, the Prescribed Authority shall release only the latter part of the building. Looking to the family members of the petitioner tenant as well as the number of the family members of the respondent no. 1, the widow, in my opinion, the petitioner's need cannot be adequately met by leaving him with a part of the building and the landlady's need can be met by the other part. The residential portion of the building is small, having a common court-yard and a common passage, with only one latrine, bath room and kitchen. There is no space where the bath room, latrine or the kitchen can be constructed, if both the landlord and the tenant are permitted to stay in the same accommodation. In my opinion, therefore, only a part of the accommodation will not, therefore, suffice the need of either the landlady or the tenant. In the circumstances, the provisions of Rule 16 (1) (d) of the Rules cannot be applied in the present case. The first submission made, therefore, by the learned counsel lacks substance. 7. In my opinion, therefore, only a part of the accommodation will not, therefore, suffice the need of either the landlady or the tenant. In the circumstances, the provisions of Rule 16 (1) (d) of the Rules cannot be applied in the present case. The first submission made, therefore, by the learned counsel lacks substance. 7. IN regard to the second submission, learned counsel has relied on the decision given by me in Bhagwandas Gupta v. Additional District Judge, 1979 UPR CC 572. IN this case I had taken the view that if certain alternative accommodation is available to a tenant where he can carry on the business, the court has to further find out as to whether the accommodation in question is suitable or not and as to whether the substantial loss would be caused to the tenant in case the application for release is allowed. IN the case of Bhagwan Das Gupta (supra) the court had allowed the release application holding that there is an alternative suitable accommodation available to the tenant. Since the release application was allowed on this very basis, I had observed that as required by Rule 16 (2) (b) further finding had to be recorded by the court in regard to substantial loss and suitability of accommodation. IN the instant case, however this principle is not applicable, because the courts below have not allowed the release application on the basis of Rule 16 (2) (b). Rule 16 (2) (b) only becomes applicable where a release application is allowed on the basis of suitable alternative accommodation where the tenant can shift his business but it is not mandatory that whenever a release application is allowed the court must determine whether a suitable alternative accommodation is available or not to the tenant where he can shift his business. 8. BOTH the Prescribed Authority as well as the lower appellate court after considering various accommodation, residential and non-residential available to the tenant came to the conclusion that greater hardship would be caused to the landlady-widow in case the release application is not allowed. The Prescribed Authority as well as the appellate court have found that the petitioner has got an alternative residential accommodation No. 6/415. It has been further found that the petitioner has got interest in shops No. 6/769, 6/295/11, 6/295/12, 6/423 and 59. The Prescribed Authority as well as the appellate court have found that the petitioner has got an alternative residential accommodation No. 6/415. It has been further found that the petitioner has got interest in shops No. 6/769, 6/295/11, 6/295/12, 6/423 and 59. So far as shop No. 6/769 is concerned, it has been stated in paragraph 22 of the application under Section 21 of the Act attached as Annexure T to the counter affidavit that the petitioner has in his actual occupation a big shop having two doors having municipal No. 6/769 situate in Mohalla Chipiyan, Saharanpur which is west facing and just in front of the property in question. The shop remains closed and the petitioner has taken it only to avoid the eventuality lest any prospective competitor may take that shop and establish business. This averment has been denied in the written statement filed by the petitioner which is Annexure 2' to the counter affidavit. The extent of the accommodation has not been denied. It was only denied in paragraph 20 of the written statement that he did not have this shop. This part of the story has been disbelieved both by the Prescribed Authority as well as the appellate court and it has been held that the petitioner has half share in this shop, which is just in front of the shop in dispute. Considering all these facts the appellate court ultimately recorded the following finding :- "The appellant is in a position evidently as indicated from the evidence to arrange for another alternative and suitable accommodation to himself even if he cannot fall back to any of the various houses recorded in his name as mentioned above whereas the respondent no. 1 has no other place where she may shift for independent residence or to carry on business to feed herself and the children depending on her. This finding in my opinion has been recorded on the basis of appraisal of evidence and I do not find any manifest error in the said finding. This being a finding of fact cannot be disturbed under Article 226 of the Constitution of India. In view of the above, I am of the opinion that the second submission made by the learned counsel for the petitioner has also no substance. 9. IN the result, the petition fails and is, accordingly, dismissed. This being a finding of fact cannot be disturbed under Article 226 of the Constitution of India. In view of the above, I am of the opinion that the second submission made by the learned counsel for the petitioner has also no substance. 9. IN the result, the petition fails and is, accordingly, dismissed. IN the circumstances of the case, the parties are directed to bear their own costs. Petition dismissed.